SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.:2291/2021
In the matter between:
KWAZIKWENKOSI MTHUNZI NDLELA Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
ZONO AJ:
Introduction
[1] It is for parties, either in the pleadings or affidavits (which serve the
function of both pleadings and evidence) to set out and define the nature of
their dispute; and it is for the court to adjudicate upon those issue 1. The
Constitutional Court2affirmed the following statement of law made by the
Supreme Court of Appeal3:
“13. Turning then to the nature of civil litigation in our adversarial system it
is for the parties, either in the pleadings or affidavits, which serve the
function of both pleadings and evidence, [1] to set out and define the
nature of their dispute and it is for the court to adjudicate upon those
issues. That is so even where the dispute involves an issue pertaining to
the basic human rights guaranteed by our Constitution, for ‘it is
impermissible for a party to rely on a constitutional complaint that was
not pleaded’. There are cases where the parties may expand those issues
by the way in which t hey conduct the proceedings. There may also be
instances where the court may mero motu raise a question of law that
emerges fully from the evidence and is necessary for the decision of the
case. That is subject to the proviso that no prejudice will be caus ed to
any party by its being decided. Beyond that it is for the parties to identify
the dispute and for the court to determine that dispute and that dispute
alone”
[2] The manner in which parties pleaded their cases is central to the
determination of this matter. Antecedent to that, there is a need for a brief
background and introduction.
[3] On 24th May 2021 the plaintiff Sibabalwe Theophelus Cyprus Siphika
instituted the instant proceedings for injuries he sustained on 03 rd April
2016 at or near R394 Road next to Mount Ayliff, Eastern Cape as a result
of the driving of motor vehicle bearing registration letters and numbers
F[...]. It is noteworthy that Mr Siphika instituted the instant proceedings
personally and in his own name. On the 3rd May 2022 this court granted an
order under Case Number 1521/2022 appointing Kwazikonke Mthunzi
Ndlela who is an Advocate of the High Court of South Africa as a curator
Ndlela who is an Advocate of the High Court of South Africa as a curator
1 Fischer v Ramahlele 2014 (4) SA 614 (SCA) at 620C -621C.
2 Public Protector v South African Reserve Bank 219 (6) SA 253 (CC) Para 234.
3 Fischer v Ramahlele 2014 (4) SA 614 (SCA) at 620C-621C as per Theron JA as she then was.
ad litem to Mr Siphika. In the course of time Mr Ndlela, curator ad litem
apparently substituted Mr Siphika as plaintiff and that is apparent in
paragraph 1.1 of the amended particulars and subsequent pleadings and
notices.
[4] The matter was defended by the defendant. A special plea dated 07 th
November 2025 was delivere d on 10 th November 2025. The special plea
raised by the defendant relates to the prescription of the plaintiff’s claim.
The defendant avers that summons herein was issued on 24 th May 2021
and served upon the defendant on 02nd June 20214 after the plaintiff’s claim
had prescribed on 02nd April 2021. For that proposition the defendant relied
on the provisions of section 23(1) of the Road Accident Act 56 of 1996 as
amended.
[5] It worths emphasis that it is common cause that the accident occurred on
03rd April 2016; the claim was lodged with defendant on 27th October 2016;
the summons was issued on 24 th May 2021 and the service thereof was
effected on 02nd June 2021. It is also not disputed that a period of five (5)
years from the date when the accident occu rred to the date of issue and
service of summons had expired. On 03 rd May 2022 a court order
appointing curator ad litem was granted.
[6] The plaintiff, realising that the prescribed five (5) year period 5 referred to
in the Act had expired, averred in the amended particulars that the five (5)
year period prescribed by section 23(3) of the Act was interrupted; and
4 Summons was issued on 24th May 2021.
5 Section 23(3) of Road Accident Fund Act 56 of 1996.
the running of prescription was interrupted by the court order dated 03 rd
May 2022 appointing the curator ad litem. Accordingly, so it is averred that
the prescription period started de novo from the date of the court order.
6.1 The matter came before me by way of a stated case in terms of Rule
33 of the Uniform Rules. The stated case was deficient in material
respects. Rule 33(2) provides that:
“(2)(a) Such statement shall set forth the facts agreed upon, the
questions of law in dispute between the parties and their
contentions thereon. Such statement shall be divided into
consecutively numbered paragraphs and there shall be annexed
thereto copies of documents necessary to enable the court to
decide upon such questions. It shall be signed by an advocate
and an attorney on behalf of each party or, whe re a party
sues or defends personally, by such party”. (my underlining)
6.2 Whilst the question of law is set out to be the prescription, but parties
contentions are not set out in the statement or stated case. Mr Badli
submitted that contentions are not n ecessary or are not required by
the rule. That submission flies in the face of the express wording of
rule 33(2) of URC. Mr Gumede was unable to answer the question
about his contentions. However, the matter was argued on the basis
of the papers serving be fore me. It is also noted that no replication
was filed to deal with pertinent averments on the defendant’s plea
about the prescription of the matter.
Discussion and Analysis
[7] The starting point should be the relevant provisions of section 23 of the
Act. Section 23 of the Act 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 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.
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
(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 prescribe before the expiry of a
period of five years from the date on which the cause of action
arose”.
[8] In Cools Ideas6 the Constitutional Court made the following expression:
“28. A fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning, unless to do
so would result in an absurdity. There are three important interrelated
riders to this general principle, namely:
(a) that statutory provisions should always be interpreted
purposively;
(b) the relevant statutory provision must be properly
contextualised; and
(c) all statutes must be construed consistently with the Constitution,
that is, where reasonably possible, legislative provisions ought
to be interpreted to preserve their constitutional validity. This
proviso to the general principle is closely related to the
purposive approach referred to in (a)”.
[9] Section 23(1) and 23(3) provides for two -staged prescription. It provides
for two prescription periods, to wit, three year and five -year prescription
periods. Firstly, it is important to note that section 23(1) and (2) relate only
to the three-year period within which to lodge a claim. That is, the right to
claim compensation prescribes upon expiration of three years of the
cause of action. That right prescribes if no claim has been lodged within a
6 Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC);2014 (8) BCLR 869 (CC) Para 28.
period of three years. That is the first prescription. However , such
prescription can be suspended or delayed in terms of section 23(2) of the
Act by three factors. Prescription does not run against the following
category of persons (i) minor (ii) a detained patient and (iii) a person under
curatorship. Minority, det ention of a patient in terms of mental health
legislation and curatorship over a person are the only factors legislatively
prescribed to suspend or delay the prescription of a right to claim
compensation.
[10] Section 23(3) of the Act provides for a right to enforce a claim by legal
proceedings as contemplated in and subject to provisions of section 24(6)
of the Act. This is a right to litigate. This right is subject to the fact that
there is a claim duly lodged within three years of the cause of action. I t
goes without saying that, once the first prescription hits there is no right to
litigate. The right to enforce a claim (right to litigate) should be enforced
after the expiry of a period of 120 days from the date on which the claim
was delivered to the defendant7 and after the documents referred to in
section 19(f) of the Act have been furnished to the fund8. However, it must
obviously be before the expiry of five years from the date when the cause
of action arose. Simply put after the proper lodgem ent of claim, the
claimant still has a further two-year period within which to issue and serve
summons, save for and subject to the period referred to in section 24(6) of
the Act.
7 Section 24(6) of Road Accident Fund Act 56 of 1996.
8 An affidavit in which particulars of the accident that gave rise to the claim concerned are fully set out; or copies
of all statements and documents relating to the accident that gave rise to the claim concerned.
[11] In Casu, there is no dispute about the first prescription, which is a right to
claim compensation within three years. The claim for compensation was
duly lodged within the prescribed period. The dispute herein relates to the
second prescription, which is the right to enforce a claim by legal
proceedings. A continuous period of five (5) years expired on 02 nd April
2021 without summons having been issued and served upon the defendant.
It is on this basis that the defendant contends that the plaintiff’s claim has
prescribed. On the other hand, the plaintiff contends that such prescription
period was interrupted by the court order dated 03rd May 2022 appointing
curator ad litem. Therefore, the sole issue for determination is whether or
not the court order aforesaid or the appointment of curator ad litem
interrupted the prescription period prescribed in section 23(3) of the Act.
[12] It is trite that parties stand or fall by the papers 9. A party is bound by his
or her pleading10. The purpose of the pleadings is to define the issues for
the other party and the court. A party has a duty to allege in the pleadings
the material facts upon which it relies 11. It is impermissible for a party to
plead a particular case and seek to establish a different case at the trial 12.
Plaintiff’s pleaded case is that the court order dated 03 rd May 2022 or the
appointment of the curator ad litem on 03 rd May 2022 interrupted
prescription. It is plain that 03 rd May 2022 falls after the 02 nd April 2021,
which date was the date on which five (5) years prescribed by section 23(3)
of the Act expired. The plaintiff ‘s claim would have ordinarily prescribed
on 02nd April 2021.
9 Nkume v Transunion Credit Bureau Pty Ltd and another 2014 (1) SA 134 (ECM) Para 7.
10 Imprefed (Pty) Ltd v The National Transport Commission 1993 (3) SA 94 A.
11 Rule 18(4) of Uniform Rules of Court.
12 Minister of Safety and security v Slabbert 2010 (2) SA 474 (SCA) Para 11.
[13] It is axiomatic that the legal basis for the grant of the order appointing
curator ad litem is that the victim or a patient must be of unsound mind
and consequently inca pable of managing his her own affairs. 13 It may
reasonably be assumed in favour of the plaintiff that the court hearing the
matter on 03rd May 2022 was satisfied by the papers and a case was made
out for an order appointing a curator ad litem. Even if it is accepted that on
03rd May 2022 the victim or patient was of unsound mind, consequently
was unable to manage her own affairs, that cannot save the plaintiff’s case.
[14] Firstly, there is nothing in the whole tenor of the pleadings that
demonstrates that at the time when the claim was still extant Mr Siphika
was of unsound mind and consequently was unable to manage his own
affairs. Even the expert reports 14which clearly alludes to Mr Siphika’s
cognitive decline, do not shed light on when that may hav e begun. Infact
they do not express a view that the victim or patient is of unsound mind
and consequently unable to manage his own affairs. Mr Badli, Counsel for
the defendant, strongly argued that Mr Siphika was at all material times of
sound mind and was able to manage his own affairs. He persuasively
argued that Mr Siphika personally lodged his claim with the defendant on
15th November 2016. He meaningfully communicated with the defendant
at all stages including the stages of offers which were made by th e
defendant to him respectively on 24th January 2017 and 17 February 2020.
When the instant proceedings were instituted on 24 th May 2021, Mr
Siphika was the plaintiff in his own personal capacity, albeit that the claim
had allegedly prescribed. That is a t estament that from 03 rd April 2016
when accident occurred to 24 th May 2021 when summons was issue, he
13 Rule 57 (1) of the Uniform Rules of Court.
14 Neurosurgeon, Clinical Psychologist and Industrial Psychologist.
was of sound mind and was able to manage his own affairs and
consequently he was of full legal capacity. That is the essence of Mr Badli’s
submission.
[15] Judging by the case number in the court order (1521/2022), it is clear that
an application for the appointment of curator ad litem was made or brought
in 2022, hence the court order appointing curator ad litem was granted
more than a year after the institution of the instant proceedings in the name
of Mr Siphika. From these facts it is easy to conclude that from 03 rd April
2016 to 02 nd April 2021, which is a period of five (5) years, Mr Siphika
was of full legal capacity and was of sound mind and was able to manage
his own affairs. In that period Mr Siphika was not under curatorship.
[16] In any event, section 23(2) (c) of the Act provides that Prescription of a
claim for compensation referred to in section 23 (1) of the Act “shall not
run against a person under curatorship.” It grammatically means that a
three-year prescription period is suspended or delayed if the injured person
is under curatorship15. An injured person must be under curatorship during
the period contemplated in section 23(1) of th e Act which is three years.
There is significant synergy between section 23(1) and 23(3) of the Act.
For Context it is proper to read them together. Three years referred to in
section 23(1) of the Act is an integral part of the five -year prescription
period referred to in section 23(3) of the Act. Section 23(1) of the Act is
subject to subsection 2 and 3. The words in section 23(1) of the Act “subject
to” means that the subsection is dependant and conditional upon section
23(2) and (3) of the Act. Section 23(1) is subservient to section 23(2) and
15 SATAWU and another v Garvas and others 2013 (!) SA 83 (CC);2012 (8) BCLR 840 (CC) Para 37.
(3) of the Act. In all, the period of three years referred to in section 23(1)
is subsumed in the period of five years referred to in section 23(3) of the
Act.
[17] In conclusion in this regard, a period of curatorship of an injured person
must be within the period of three years referred to in section 23(1) and
five years referred to in section 23(3) of the Act. The curatorship must
occur within the legislated presc ription period. It cannot apply when the
prescription period has run to the fullest. Purposive interpretation requires
that the purpose of the provision must be taken into account 16. Sight must
not be lost of the fact that section 23(1), (2) and (3) of the Act seek to
prevent or stop the running of prescription. The prevention can only happen
when something has not happened. Stopping can happen when something
is in progress. It is unequivocal that prevention and stopping cannot take
place after the fact. I agree with Mr Badli’s submission that the horse now
is bolted. An ex post facto curatorship over the injured person cannot save
the claim from prescription. I therefore come to conclusion that the court
order dated 03 rd May 2022 or the appointment of the c urrent plaintiff as
curator ad litem can and did not interrupt the prescription period referred
to in section 23(3) of the Act. I also find that the prescription period referred
to in section 23(3) of the Act had ran to the fullest without interruption.
[18] One aspect that deserves a short shrift is the one of the offers made by the
defendant and not accepted by Mr Siphika. Firstly, in law context is
16 Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) Para 28.
everything17. The averments dealing with the orders are contained in
paragraph 6.1.2 and 6.1.3 of the amended particulars of claim as follows:
“Compliance
6.1.2 On the 24 th January 2017 an offer on merits (negligence) was issued
but RAF but the injured person did not sign the acceptance offer hereof, see
annexure “A”.
6.1.3. Further on or about February 2020 the injured person was called by
Nomthandazo Ntuli who works for RAF in Durban to come to RAF Durban
offices and sign an offer of R350 000.00 which the injured person does not
know whether it was interim of fina l. On the same month (February 2020) the
injured person went to RAF Durban offices as requested by Ms Ntuli but
refused to accept an offer of R350 000.00 and as a result injured person upon
seeing no progress thereafter decided to approach his present attorneys to
pursue the matter further on 06th November 2020” (sic).
[19] The issue about the offer was raised only to give historical background
about the matter, not in the context of pleading interruption of prescription.
It was averred in the context of demonstrating to this court that the plaintiff
has complied with the statutory requirements, and all that was necessary to
be complied with, hence it appears under the heading compliance, not
interruption of the running of prescription. It was an afterthought to argue
it out of its proper context to support a cause about the interruption of
prescription. The stated case referred to above introduced the question of
the offers as a menu for this court to consider when determining this matter.
I also find solace for that in the oral submission by plaintiff’s Counsel, Mr
Gumede. That approach was incorrect.
[20] In any event, the offer attached to the papers as annexure A was made on
an “without prejudice” basis. Mr Gumede was unable to advance argument
as to why a document that was a communication made on a “ without
as to why a document that was a communication made on a “ without
17 Minister of Home affairs and others v Scalabrini Centre, Cape Town and others 2013 (6) SA 421 (SCA);
2013 (4) ALL SA 571 (SCA) Para 89.
prejudice” basis should be used in court as evidence. It is trite that the
concession made for settlement purposes does not waive any rights of the
party making such concession. It cannot be held against that party. In a
nutshell the defendant made those offers without detriment to any of its
existing rights. The defendant did not intend to prejudice its right to have
its dispute resolve by the court of law 18. The intention was only to s ettle
the matter out of court amicably, which settlement did not eventuate. In any
event Mr Siphika did not align himself and did not agree with the contents
of the offer as he did not accept it. He therefore cannot rely on the same
contents he effectively rejected to support his cause. Our law does not
permit a party to take two inconsistent positions; to blow hot and cold;
approbate and reprobate 19. I accordingly find that reliance on the offers
referred to above is without merit and the defendant’s special succeeds.
Costs
[21] It is a general rule that costs must follow the result. It was accepted by the
defendant’s Counsel that the plaintiff was pursuing her constitutional right,
inter alia, to bodily integrity 20. He further conceded that in these
circumstances the principle enunciated in Biowatch21 should be applied.
He therefore did not insist on the issue of costs.
Order
[22] In the result following order shall issue:
1. The defendant’s special plea of prescription is upheld.
18 Section 34 of the Constitution.
19 Hlathswayo v Mare and Deas 1912 AD 242.
20 Section 12(2) of the Constitution.
21 Beowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC) Para 54-60.
2. Plaintiff’s claim is hereby dismissed.
3. There shall be no order as to costs.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the Plaintiff :Adv Gumede
Instructed by : STATE ATTORNEY
94 Sission Street
Fortgale
Mthatha
For the Defendant :Adv Badli
Instructed by : SIBONELO NOMV ALO INC.
5TH Floor Denor House
356 Anton Lembede Street
Durban
Tel: 031 305 0196
Email:sibonelonomvalo@gmail.com
c/o : M. NOGUMBE INC
No 20 Eagle Street
Mthatha
Matter heard on : 11 November 2025
Delivered on : 20 November 2025