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: 11403/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 17 -06-2025
SIGNATURE:
In the matter between:
T[...] E[...] L[...] obo 1ST PLAINTIFF
T[...] O[...] M[...]
T[...] L[...] R[...]
T[...] S[...] P[...] 2ND PLAINTIFF
T[...] T[...] S[...] 3RD PLAINTIFF
T[...] K[...] M[...] 4TH PLAINTIFF
T[...] T[...] B[...] 5TH PLAITIFF
And
ROAD ACCIDENT FUND DEFENDANT
JUDGEMENT
MASHAMBA AJ
INTRODUCTION
1. This is a claim for loss of support against the Road Accident Fund ("the
defendant or RAF") in terms of Section 17 of the Road Accident Fund Act1,("the Act")
as a result of the accident that occurred on the 23 October 2017. Thekisa David, T[...]
("the deceased"), born on 01st June 1968 was a passenger in the insured motor
vehicle with registration numbers and letters D[...] , when t he aforesaid motor vehicle
in which he was a passenger lost control and overturned. The deceased was serious
injured and succumb to his injuries while in Lebowakgomo hospital on the 26
October 2017 a few days after the accident.
2. The deceased was married to E[...] L[...], T[...], the First Plaintiff, who was
born on the 16th September 1967, acting in her capacity as a deceased's wife and in
her representative capacity as a biological mother of two minor children namely; O[...]
M[...], born on the 08th December 2007 and L[...] R[...] , T[...], born on the 16th May
2010, The Second Plaintiff is S[...] P[...], T[...], born on the 14th March 1998, The
Third Plaintiff is T[...] S[...], T[...], born on the 04th July 2000, The Fourth Plaintiff is
K[...] M[...] , T[...], born on the 17th June 2002, and The Fifth Plaintiff is T[...] B[...],
T[...], born on the 10th July 2005, together instituted a loss of support claim against
RAF in their capacity as children depended from the deceas ed ( "the Plaintiffs").
1 Road Accident Fund Act 56 of 1996, as amended
3. On the 19th October 2022, the Plaintiffs issued a combined summons at the
above honourable court against RAF, which was served by the Sheriff on the 20th
October 2022.
4. On the 22nd February 2024, the Defendant served and filed its notice of
intention to defend. Subsequently, the bare denial plea was served to the Plaintiffs
and filed with court on the 19th April 2024. After .the close of the pleadings, the
Plaintiffs in terms of rule 35(1) of the Uniform Rules of Court2 ("the Rules"),
discovered all documents and pleadings they intend to use in court. The Defendant's
discovery affidavit was not served and filed to court as required by the Rules.
5. On the 11th December 2024, the Plain tiffs served and filed their notice of set
down. On the 28th February 2025 the Plaintiffs via an email invited the Defendant to
attend a virtual pre -trial meeting but the Defendant failed to attend with no reasons
advanced.
6. The matter was set down for hearing on the 14th April 2025. Honourable
Judge Muller, allo cated the matter same day to Chauke AJ. Honourable Chauke AJ
stood down the matter until the 17th April 2025 for trial. The matter could not be
heard on the 17thApril 2025 and it was further stood down to be heard on the 25th
April 2025. The matter was all ocated to this court and before the matter could
proceed the Defendant's Counsel indicated that he served the Plaintiffs with the
notice in terms of rule 28 of the Rules. The Defendant served notice of his intention
to amend his plea by adding a prescription special plea against the Plaintiffs. The
Plaintiffs confirmed receipt of the said notice in terms of rule 28 on the 24th April
2025, a day before trial. The Plaintiff ’s Counsel objected to the Defendant's late
notice in terms of rule 28 of the Rules.
7. After the parties' submissions, the judgment was reserved. The Defendant
was directed to serve and file his concise heads of argument on or before the 23rd of
May 2025 a nd the Plaintiffs were directed to serve and file their concise heads of
2 Uniform Rules of Court of South Africa, as amended on the 01 July 2019 (the rules)
argument on or before the 30th of May 2025. Both parties submitted their heads of
argument as directed.
8. The Plaintiffs made an application in terms of rule 38(2) of the Rules, tha t
evidence be produced by way of an affidavits, therefore, the application was granted.
ISSUES COMMON TO THE PARTIES
9. The following are common issues not in dispute;
9.1 that on the 23 October 2017 the deceased was a passenger in an
insured motor vehi cle when it lost control and capsized.
9.2 that deceased was serious injured and succumb three (3) days later as
a result of the injuries.
9.3 that the deceased was a bread winner and had a duty to support the
Plaintiffs.
9.4 that the First Plaintiff ’s clai m on behalf of the minor children did not
prescribe.
ISSUES TO BE DETERMINED
10. The court was to determine the following issues;
10.1 whether the Plaintiffs' loss of support claim was properly lodged in
compliance with Section 24 of the Act?
10.2 Whet her the Fourth Plaintiff's claim prescribed as a result of her names
not appearing on the RAF 1 form lodged on the 18th November 2020 and 18th
November 2022 respectively?
10.3 Whether the First Plaintiffs claim in her personal capacity, and the
Second, the Third, the Fourth and the Fifth Plaintiffs' claim prescribed?
DEFENDANT'S NOTICE IN TERMS OF RULE 28
11. The Defendant's Counsel raised a special plea on the bench and requested to
handover the notice in terms of rule 28 of the Rules. The Plaintiffs' Counsel objected
to the handing over of the said notice and argued that the Defendant had an ample
time to ame nd his plea before trial but had failed to do so. The Plaintiffs' Counsel
further argued that raising a special plea on the bench is prejudicial to the plaintiffs,
because it is late and has no substance since the Plaintiffs' claims were properly
lodged wi thin the prescribed period of three (3) days.
12. The Plaintiffs indicated that Chuene Thema Inc Attorneys ("the previous
attorneys") who are currently not in practice lodged their claim and that the previous
attorneys mandate was terminated. The Defendan t confirmed that the system
showed that the funeral expenses' claim was lodged and already paid but argued
that there is no proof that the Plaintiffs' claim for loss of support was lodged within
prescribed period of three (3) years.
13. The court had a si ght of a letter from Defendant which confirmed that the
Plaintiff's claim was lodged by the previous attorneys.
14. Subsequent to the parties' deliberations, the court refused to accept the
Defendant's amendment in terms of rule 28 of the Rules. The said notice was served
to the Plaintiffs very late and there were no cogent reasons given to condone the late
service and filing of the notice.
THE LAW
Compliance with section 24 of the Act
15. Section 24 of the Act provides as follows i n the relevant parts :
"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 b e completed in all its
particulars;
2(a) The medical report shall be completed on the prescribe d form by the
medical practitioner who treated the deceased or injured person for the bodily
injuries sustained in the accident from which the claim arises , or by the
superintendent (or his or her representative) of the hospital where the
deceased or injured person was treated for such bodily injuries: Provided that,
if the medical practitioner or superintendent (or hi s or her representative)
concerned fails to complete the medical report on request within a reasonable
time and it appears that as a result of the passage of time the claim
concerned may become prescribed, the medical report may be completed by
another med ical practitioner who has fully satisfied himself or herself
regarding the cause of the death or the nature and treatment of the bodily
injuries in respect of which the claim is made.
(b) Where a person is killed outright in a motor vehicle accident the
completion of the medical report shall not be a requirement , but in such a
case the form referred to in subsection (1)(a) shall be accompanied by
documentary proof, such as a copy of the relevant inquest record or, in the
case of a prosecution of the person who allegedly caused the deceased's
death, a copy of the relevant charge sheet from which it can clearly be
determined that such person's death resulted from the accident to which the
claim relates.
3. A claim by a supplier for the payment of expenses in t erms of section 17(5)
shall be in the prescribed form, and the provisions of this section shall apply
mutatis mutandis in respect of the completion of such for m.
5. If the Fund or the agent does not. within 60 days from the date on which a
claim was sen t by registered post or delivered by hand to the Fund or such
agent as contemplated in subsection (1), object to the validity thereof, the
claim shall be deemed to be valid in law in all respects .
16. In the SCA decision of Road Accident Fund v Busuku3, where Eksteen AJA,
stated the following:
3 Road Accident Fund v Busuku [2020 ] ZASCA 158 at para 14 (" Busuku "). Para 20
"[I]n respect of the submission of a claim this Court, in Pithey, [Pithey v Road
Accident Fund [2014] ZASCA 55 ; 2014 (4) SA 112 (SCA) para 19] held: 'It
has been held in a long line of cases that the requirement relating to the
submission of the claim form is peremptory and that the prescribed
requirements concerning the completeness of the form are directory, meaning
that substantial compliance with such requirem ents suffices. As to the latter
requirement this court in "SA Eagle Insurance Co Limited v Pretorius"
reiterated that the test for substantial compliance is an objective one .' This
approach is confirmed by the terms of the form which says in part 20 that
substantial compliance is required in regard to inter alia the medical report".
Para 20
17. The court further considered the case of Khamo v Road Accident Fund4,
(00667/2017 ) [2023) ZAGPJHC 1325 (15 November 2023) where Strydom J quoted
the case of Busuku, states the following;
"In Busuku the issue was the incompleteness of the form and not who filled in
the medical report, section 22, of the form. From paragraph 3 of this judgment
it appears that the portion of the form which provides for the medical report
was not completed at all. It was submitted that a copy of the original records
of the Mthatha Hospital. which reflected particulars of the claimant's
hospitalization. the medical assessment of the claimant's condition from time
to time. medical treatment received. and surgical procedures carried out
together with the identity of the doctors involved therein. were sufficient for the
Fund to consider and investigate the cla im". Para 21
Prescription of a claim
18. In the case of Mbhiiyozo v Eskom Holdings SOC Limited (3133/2023)
[2024) ZAECMHC 55 (25 June 2024)5 Zono AJ stated the following;
4 Khomo v Road Accident Fund, (00667/2017 ) [2023] ZAGPJHC 1325 (15 November 2023). Para 21
5 Mbhiiyozo v Eskom Holdings SOC Limited (3133/2023) [2024] ZAECMHC 55 (25 June 2024), para
40-42
"However, that is not the end. Section 17(1) finds application in instances
where a special plea has to be raised. I next quote the full text of section 17
of the Prescription Act .
"17. Prescription to be raised in pleadings
(1) A court shall not of its own motion take notice of prescription.
(2) A party to litigation who invokes prescription, shall do so in the relevant
document filed of record in the proceedings: Provided that a court may allow
prescription to be raised at any stage of the proceedings." Para 40
These provisions are couched in peremptory terms. If a provision is couched
in a negative form, it is to be regarded as peremptory rather than a directory
mandate. A statutory requirement construed as peremptory usually need
exact compliance for it to have the stipulated legal consequences [18]. As a
general rule non -compliance with peremptorv provision results in nullity . Para
41
The net effect of the above sentiments is that, if peremptory provisions of
section 17(1 ) of the Prescription Act may be breached any act that (!lay
follow may not only be unlawful but also be null and void. Even though it is
permissible for a court to rai se any point that is apparent from the papers,
that general principle does not apply in the case of prescription. Section 17(2 )
of the Prescription Act requires that a special plea with clear and concise
facts supporting it must pertinently be raised in th e relevant pleading, a plea in
this case. The court is expressly prohibited to mero motu raise any point
relating to prescription if it is not raised in the plea filed of record ". Para 42
PLAINTIFFS' SUBMISSIONS
19. The Plaintiffs submitted that the matt er was properly lodged by the previous
attorneys and that the Defendant did not raise prescription in his plea because the
matter did not prescribe. The Plaintiffs argued that the Fourth Plaintiff was properly
added to the particulars of claim because the notice of amendment was served to
the Defendant and no objection was raised against the proposed amendment,
therefore, the amendment was effected. The Plaintiffs argued that the amount as
appears in the actuarial calculations is fair and reasonable to comp ensate the
Plaintiffs for their claim for loss of support against the Defendant.
DEFENDANT'S SUBMISSIONS
20. The Defendant submitted that RAF form 1, medical report part was not
completed, therefore, did not comply with Section 24 of the Act, which requi res that
the medical report of the deceased must be completed by the treating Doctor
because the deceased died 3 (three) days after the accident. Further that the form
only indicates that the Plaintiffs are claiming for future loss of support but past loss of
support was not claimed in the RAF 1 form, as a result the Defendant prayed that the
Plaintiffs' claim for past loss of support should be dismissed.
21. The Defendant further argued that the matter was lodged on the 18 November
2020 approximately a mo nth later after the prescribed time of 3 (three) years in
terms of Section 23 of the Act, therefore the claim prescribed.
22. The Defendant further argued that the Fourth Plaintiff's claim prescribed
because she was not part of claimants in RAF 1 form whi ch was completed on the
18th November 2020 and was further not part of claimants in the amended RAF1
form which was submitted on the 10th October 2022. The Defendant submitted that
Fourth Plaintiff was only added in the pleading through an amended particul ar of
claim. The Defendant prayed that the Fourth Plaintiff's claim should be dismissed.
23. The Defendant denied that previous attorneys lodged the claim but confirmed
that the system indicates that funeral expenses' claim were lodged and already paid.
The Defendant submitted that only the claims of the two minor children, namely, O[...]
M[...] and L[...] R[...] which are not prescribed.
24. The Defendant's counsel indicated that he had no instructions with regard to a
fair and reasonable amount to comp ensate the Plaintiffs. The Defendant did not
dispute the method used to calculate the past and future loss of support of
R 2 091 440.00 as calculated by Tsebo Actuaries dated 26th March 2025.
THE COURT DISCUSSION AND FINDINGS
25. It took the Plaintiffs ye ars before this matter come to see justice. The Plaintiffs
lost support after the deceased who was a bread winner had demised on the 23rd
October 2017 as a result of the motor vehicle accident. The Defendant did not
investigate the Plaintiffs' claim. The Defendant was quiet for approximately seven (7)
years after lodgment. On the 24th April 2025, a day before trial, the Defendant served
the Plaintiffs with the notice in terms of rule 28 of the Rules.
26. The court noted that the Defendant was invited to attend the pre -trial
conference but he did not attend. The Defendant did not answer to the Plaintiffs pre -
trial questions when requested to do so by the Plaintiff's attorneys. The Defendant
did not plead to the Plaintiff's amended particulars of claim.
27. The Defendant admitted that funeral expenses was lodged and paid. For the
funeral expenses to be paid the claimant has to comply with Sect ion 24 of the Act.
The lodgment documents for funeral expenses' claim were not disclosed before court.
It is not disputed that the Defendant was in possession of the deceased's death
certificate, police docket, medical records and postmortem. The court fin ds that the
Defendant had enough information to begin with their investigation in this matter but
they failed to do so.
28. Although the Defendant was not transparent about the documents which were
lodged by the previous attorneys, the court on the balanc e of probabilities finds that
the claim was properly lodged. The Defendant's Counsel was not aware that his
client confirmed through a correspondence letter that the previous attorneys were
attorneys of record before their mandate was terminated on the 18th November 2020.
This makes the counsel's argument of prescription to fall away and therefore, the
court finds that the Plaintiffs' claim did not prescribe.
29. The court noted that on the 18th November 2020 the current Plaintiffs'
Attorneys re lodged the Plaintiffs' claim since they had no file contents from the
previous attorneys. The Plaintiffs' attorneys attempted to get the previous attorneys
file contents from the Legal Practice Council (L PC) because the previous attorneys
are no longer in practice. The LPC attempted to get the file but did not succeed. The
LPC informed the Plaintiffs' attorneys in writing that the file was not traceable.
30. The court had a sight of a letter from Mr Grego ry Mphahlale who was a RAF's
claim handler in this matter and the letter confirmed that the Plaintiffs' claims were
already lodged by previous attorneys. The court finds that this corroborate the
Plaintiffs argument that the Plaintiffs' claims were lodged within three (3) years by the
previous attorneys.
31. With regard to the claim of the Fourth Plaintiff, the court noted that on the 04th
March 2025, the Plaintiff served the Defendant with notice of intention to amend the
particulars of .claim and the sai d notice precisely states that unless written objection
to the proposed amendment is received within ten (10) days of the receipt thereof,
the amendment will be deemed to be so effected. The Defendant did not object to
the proposed amendment and the same w as effected. The Fourth Plaintiff was
added as a party in the particulars of claim. The Defendant did not plead to the
amended particulars of claim. No prescription was raised against the Fourth Plaintiff,
therefore, the claim remains valid. Furthermore, a lthough the Defendant did not
disclose the lodgment records received from the previous attorneys, the court in the
balance of probabilities finds that the lodgment included the Fourth Plaintiff's claim.
32. The court finds the Defendant's argument not cor rect when he submitted that
the Plaintiffs' claim for past loss of support should not be allowed because it does not
appear in the RAF 1 form. Even if the claim for past loss of support was not done in
the RAF 1 form but claimed in the summons is still val id.
33. The court was absolutely puzzled that the Defendant's counsel had no
knowledge that the Plaintiffs' claim was lodged by previous attorneys. The court
requested further information by requesting the Defendant's written confirmation of
their instruc tion given to the Defendant's counsel who raised prescription against the
Plaintiffs' claim and the court further requested all who were involved in giving of
such instruction. The Defendant replied through a letter dated the 09 June 2025 as
follows;
"This matter had challenges with a l/location in that there was multiple
summons issued by the same attorneys with different link numbers . The
matter was officially handed to the officer to attend to on the 16th of April 2025.
As we went through the file, we hav e discovered that there was non -
compliance on the matter and some of the claims had already prescribed
following the discovery we instructed the state attorney that we need to raise
the special plea to that effect The state attorney was instructed to tende r an
amount of R300 000 towards the minor children's claim . Issues per taining the
special plea, caused us to request all the files on the matter (both link
numbers) and all the special plea could only be finalized on the afternoon of
the 23rd of April 20 25."
34. The above reply is far -fetched, it does not disclose who were involved in
giving of the instruction to raise special plea? The Defendant's letter does not
indicate which multiple summons issued by the same attorneys she is referring to
because in the court's file there was only one summons. The Defendant's letter
further indicates that the matter was handed to the officer but it does not clearly
mention who handed the matter to the officer and who is the officer referred to? The
Defendant further indicated that the state attorney was mandated to tender
R 300 000.00 to minor children but such tender was not forwarded to the Plaintiffs
and the court was never informed about such offer.
35. The letter also does not disclose the issue raised relating to the letter written
by the defendant to the current attorneys of record regarding a claim which was
lodged by the previous attorneys. No documents relating to such claim was provided
to the court and the counsel was making oral submission without any doc umentary
evidence to the allegations.
36. The fact that the Defendant's Counsel was not aware of the lodgment by the
previous attorneys and that he did not disclose any multiple summons issued by
same attorneys, the court is of the view that the Defendant is not transparent about
the status of the Plaintiffs' claim. The issues which were raised by the Defendant are
a mere speculation and far from the truth. The Defendant did not disclose the
information which was lodged by the Plaintiffs' previous attorney s and this court finds
the conduct of the Defendant absurd as an institution which is willing to fairly
compensate the deserving claimants, especially in claims for loss of support.
37. As this court deal with this matter, there is no special plea raised in the
pleadings. The rejection of the Defendant's notice in terms of rule 28 of the Rules
must be taken as an absolute castigation against the Defendant's deliberate failure
to comply with the Rules and refusal to co -operate when requested to do so by the
Plaintiff.
38. In the case of Mbhiiyozo v Eskom Holdi ngs SOC Limited referred in
paragraph 18 in supra It was stated that if the prescription was not raised in the
pleading the court is prohibited to consider it. So, no prescription raised in the
pleadings in this matter and such issue of prescription will n ot be entertained.
39. The court was satisfied that the Plaintiffs' claim was properly lodged in
compliance with section 24 of the Act. In the case of Khomo v Road Accident Fund
referred in paragraph 17 in supra , precisely states that although the medical part of
RAF 1 form was not completed but the fact that the Defendant was in possession of
medical records, this was complete to investigate the claim.
40. The Defendant's legal representative indicated that no dispute that the
Plaintiffs should be awarde d 100 % on merits as the deceased was a passenger in
an insured motor vehicle and that the deceased had a duty to support the Plaintiffs.
The Defendant's Counsel indicated that he had no instruction with regard to the
reasonable amount to compensate the Pl aintiffs and had no instruction with regard to
the Plaintiffs' actuarial calculations. This again is despite the official from the Road
Accident Fund indicating that instruction was given to the attorneys to tender an
amount of R300 000.00. It is very clea r that someone is not transparent and is lying
to the court regarding this claim.
41. The court noted that the deceased was a self -employer and the court perused
the deceased's bank statements and was satisfied that the deceased was a
selfemployer generating an income to support his family.
42. The Plaintiffs' loss of support was calcula ted by Tsebo Actuaries6. Two
scenarios were postulated, the first, opined that children dependency will be
calculated until the age of 18 and secondly, it was opined that children dependency
will be calculated until the age of 21 as the children will go be yond high school to
tertiary.
43. The court finds that it is fair and reasonable to consideration the second
scenario due to the fact that during the demise of the deceased all children were
students and expected to study further until tertiary level. So, the court is for the view
that is fair and just to consider the Second Scenario. The actuarial calculation
calculated the amount of R 2 091 440.00 as a fair and reasonable estimation for the
Plaintiffs' loss of support.
COSTS
44. The Court shall not dev iate from the general rule that the cost shall follow the
successful party. It took the Plaintiffs years to prosecute their claim and the court
considers that it will be fair to award the Plaintiffs a reasonable cost as the
successful party in this proceed ing.
45. In the circumstances, the court makes the following order;
1. the Defendant to pay the amount of R 2 091 440.00 to the Plaintiffs,
shared as follows;
1.1 For the First Plaintiff the sum of R 66 932.00 in respect of her pas t loss
of support.
1.2. For the First Plaintiff the sum of R 502 592.00 in respect of the past
and future loss of support on behalf of O[...] M[...] T[...].
1.3. For the First Plaintiff the sum of R 687 925.00 in respect of the past
and future loss of sup port on behalf of O[...] M[...] T[...].
1.4. For the Second Plaintiff the sum of R 66 161.00 in respect of her past
loss of support.
6 Index Vol 4, page 9
1.5. For the Third Plaintiff the sum of R140 777.00 in respect of her past
loss of support.
1.6. For the Fourth Plaintiff the sum of R 234 092.00 in respect of her past
loss of support.
1.7 For the Fifth Plaintiff the sum of R 392 961.00 in respect of her past and
Future loss of support.
2. The Defendant is ordered to pay party and party High Court costs to
the Plaintiffs, i ncluding counsel fee on scale B, including the cost of
appearance on the 14th and 17th of April 2025.
3. The payment referred above shall be made into the Plaintiffs' attorneys
of record Trust account.
E MASHAMBA
JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
APPEARANCES
FOR THE PLAINTIFF : Adv. ML Mabitsi
INSTRUCTED BY : SEPEDI LEDWABA INCORPORATED
EMAIL : sepedi@ledwabaattornevs.co.za /
tumelo@ttkgomoinc.co.za
FOR THE DEFENDANT : MR K PHASWANA
INSTRUCTED BY : THE STATE ATTORNEYS
EMAIL : kabelop@raf.co.za
DATE OF HEARING : 25TH APRIL 2025
DATE OF JUDGEM ENT : 17TH JUNE 2025