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[1] The plaintiff has instituted proceedings in terms of the Road Accident Fund
Act1 (RAF) against the defendant (the RAF) in this Division. Pleadings have
closed and t he parties agreed to the separation of a special plea of
prescription in terms of Rule 33(4) and that the special plea would be
determined by means of a stated case.
CHRONOLOGY
[2] The following chronology emerges from the stated case.
[3] The plaintiff was injured in a motor vehicle collision that took place on 23
December 2011 in which he sustained bodily injuries. A claim was lodged
with the RAF, and an action was instituted in the Regional Court , Pretoria on
06 December 2012 under case number 2330/12. In those proceedings the
RAF appointed attorneys and a plea was filed.
[4] Without withdrawing the aforesaid action, the plaintiff, upon realising that his
claim exceeded the jurisdiction of the Regional Court, proceeded to institute a
summons in the High Court of this Division on 23 February 2017. Different
attorneys represented the RAF and no plea of lis pendens or prescription was
initially raised. The parties participated in the process of obtaining certification
for trial readiness.
1 56 of 1996.
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[5] In the course of pretrial discussions, the RAF conceded liability. The matter
was certified as trial ready, and the plaintiff then proceeded with an application
for interim payment in terms of Rule 34A.
[6] On 28 February 2022 an order was obtained for an interim payment of R1,2
million. This order was obtained by default as the RAF did not oppose the
proceedings.
[7] When the applicant proceeded to issue a writ to enforce the interim payment,
the RAF responded by applying for a rescission of the order granting the
interim payment. The application for rescission failed.
[8] The RAF then, for the first time, contended that the claim had prescribed and
filed an amended plea to that effect. The special plea of lis pendens was also
raised but fall outside the ambit of the stated case. The RAF’s contention is
that, as the accident had taken place, and the cause of action had arisen, on
23 December 2011, the five -year prescription period envisaged in section
23(2) of the RAF Act had expired by the time the action was instituted.
DISCUSSION
[9] Prescription needs to be specifically raised in the pleadings, and the court
cannot mero motu enquire into the issue (Section 17(1)-(2) of the Prescription
Act2). In Van Den Bergh v Government of the French Republic the following is
stated at par [24]:3
2 68 of 1969.
3 Van Den Bergh v Government of the French Republic 2026 JDR 1434 (WCC) at para 24.
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“the special plea that was raised in this matter by the appellants, was one of
prescription. The full court held that the onus in respect of the special plea
rested on the appellants. In doing so, the court relied on Macleod v Kweyiya
2013 (6) SA 1 (SCA) at para 10, where the Supreme Court of Appeal held: This
court has repeatedly stated that a defendant bears the full evidentiary burden
to prove a plea of prescription, including the date on which a plaintiff obtained
actual or constructive knowledge of the debt. The burden shifts to the plaintiff
only if the defendant has established a prima facie case.”
[10] When a claim arises, prescription is interrupted by the service of court
proceedings according to section 15(1) and 15(4) of the Prescription Act.4 In
Rademeyer v Ferreira ,5 it is stated at par [37] that “section 15(1) of the
Prescription Act provides that the running of prescription is interrupted by the
service on the debtor of any process whereby the creditor claims payment of
a debt.”
[11] The Regional Court proceedings that were ins tituted by the plaintiff had the
effect of interrupting prescription. When the plaintiff instituted a second action
based on the same cause of action in the High Court in 2017, it did so in
circumstances where prescription had been interrupted.
[12] The institution of a second action is prima facie vexatious, and it was open to
the RAF to raise a plea of lis alibi pendens . In Eskom Holdings SOC Ltd v
Silicon Smelters (Pty) Ltd ,6 the court confirmed this principle by relying on
4 68 of 1969.
5 Rademeyer v Ferreira 2025 (2) SA 1 (CC) at para 37.
6 Eskom Holdings SOC Ltd v Silicon Smelters (Pty) Ltd [2023] 4 All SA 661 (GP) at para 60.
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Richtersveld Community v Alexkor Ltd 2000 (1) SA 337 (LCC). At 340E–343C,
where Gildenhuys J held as follows:
“a defence of lis alibi pendens depends upon the existence of
a pending earlier action. The mischief at which the defence is directed is that it
is prima facie vexatious to bring two actions in respect of the same subject
matter. The requisites for a valid plea of lis alibi pendens are that the actions
must be between the same parties, must concern the same thing and must
arise from the same cause of action.”
[13] Section 24(5) of the RAF Ac t provides that, upon lodging of a claim against
the RAF, and if the Fund does not, within 60 days from lodging object to the
validity thereof, “the claim shall be deemed to valid in law in all respects”.
[14] This provision has been used in the past by plaintiffs to contend that, unless
there is an objection within 60 days from lodging, a plea going to the substance
of liability is not competent. This proposition has been rejected by the SCA.
Section 24(5) only deals with procedural matters and not matters of substance
(which would include prescription). (See Thugwana v Road Accident Fund
2006 (2) SA 616 (SCA) at paragraph [8], page 619 C – D).
[15] The RAF did not raise lis pendens and prescription in its original plea in the
High Court proceedings. It introduced these defences only after:
15.1 It had conceded liability on the merits;
15.2 The plaintiff had obtained an interim payment sanctioned by the court
for R1,2 million; and
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15.3 The RAF’s rescission of the interim payment had failed.
[16] The plaintiff would have had a right to object to the introduction of a plea of
prescription at such a late stage simply because it contyradicts an admission
of liability and because it was prejudiced. In J.M.S v M.M.A.N,7 the following
is stated:
“it is trite law that a Court hearing an application to permit an amendment has
a wide judicial discretion, this is echoed in the wording of Rule 28(10). When
exercising such discretion whether to permit an amendment, the court is
required to follow the well -established approach set out in Moolman v Estate
Moolman 1927 CPD 27 at 29 which states that “ the practical rule adopted
seems to be that amendments will always be allowed unless the application to
amend is mala fide or unless such amendment would cause an injustice to the
other side which cannot be compensated by costs, or in other words unless the
parties cannot be put back for the purposes of justice in the same position as
they were when the pleading which is sought to amend was filed.”
[17] The plea of prescription strikes at the validity of the interim payment which the
plaintiff had obtained, following the concession of liability by the RAF.
[18] Nevertheless, the amended plea was filed raising both defences of lis
pendens and prescription.
[19] It is trite that the plea has to be assessed as at the time of institution of the
High Court proceedings in 2017 . (See Levi Strauss & Co v Coconut Trouser
7 J.M.S v M.M.A.N [2023] ZAGPPHC 521; 40230/2020 at para 8.
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APPEARANCES:
COUNSEL FOR APPLICANT : ADV GWABENI
COUNSEL FOR RESPONDENT : ADV MADASELE