IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: 8742/2014
In the matter between:
ADVOCATE SAALEHA MOOLA N.O.
As curator ad litem for GUGU BUYISIWE PRECIOUS THABETHE PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
ORDER
The following order is granted:
1. The special plea of prescription is upheld.
2. Each party shall bear its own costs.
JUDGMENT
Sibiya J
2
[1] This matter was set down for one day on 8 June 2026 and I was advised that
the only issue for determination on that day was the special plea of prescription. The
special plea was contained in a notice to amend dated 5 June 2026 and the plaintiff
indicated that it would not be objecting to the proposed amendment and that it could
be effected forthwith.
[2] The plaintiff further indicated that it would not be filing a replication to deal
with the special plea and that I should determine the special plea on the papers as
they stood. This was the agreement in chambers and the basis on which I agreed to
hear the argument on the special plea.
[3] The defendant’s special plea is framed as follows:
‘1.
The Plaintiff’s claim for compensation arises from the alleged negligent driving of a motor
vehicle where the identity of neither the driver nor the owner has been established. The
Plaintiff sues in her personal capacity.
2.
The Plaintiff’s claim is accordingly brought under Section 17(1)(b) of the Road Accident Fund
Act No. 56 of 1996 (‘the Act’), as amended and the regulations promulgated under section
26 of the Act.
3.
In terms of Regulations 2(2) of 2008, of the Act, a claim for compensation referred to in
section 17(1)(b) of the Act shall be sent or delivered to the Fund in accordance with the
provisions of section 24 of the Act, within two years from the date upon which the claim
arose, irrespective of any legal disability to which the third party concerned may be subject
and notwithstanding anything contrary in any law.
4.
The Plaintiff’s claim arose on 1 July 2009, when it is alleged that Plaintiff was involved in a
motor vehicle accident with an unidentified vehicle at or near the R103 near Colenso,
KwaZulu-Natal.
5.
Accordingly Plaintiff was obliged to send or deliver her claim for compensation on the
prescribed form to the Defendant on or before 1 July 2011.
6.
3
The Plaintiff sent her claim form to the Defendant on 28 June 2012 which was received by
the Defendant on 29 June 2012.
7.
In terms of Section 17(1)(b) read with regulation 2(2) of 2008 of the Act, the Plaintiff’s claim
is therefore deemed to have prescribed and Plaintiff’s claim is therefore unenforceable
against the Defendant.
WHEREFORE Defendant prays that Plaintiff’s claim be dismissed with costs.’
[4] The relief sought in the special plea is opposed from the bar. Prior to dealing
with such opposition, it is necessary to set out the relevant chronology which is not in
dispute.
[5] Ms Gugu Buyisile Precious Thabethe (Ms Thabethe) was involved in an
accident with an unidentified vehicle on 1 July 2009. She lodged her claim against
the Road Accident Fund ( RAF) on 29 June 2012, acting personally (ie she was not
represented by a curator or acting under assistance).
[6] On 6 March 2014 , the RAF conceded the merits via email, subject to a 10%
apportionment being applied against Ms Thabethe. This concession was accepted
by Ms Thabethe on the same day . On 24 April 2014 , the RAF withdrew the offer in
respect of the merits via email from the same claims handler who had communicated
the offer a month and a half before.
[7] Summons was issued following such withdrawal, on 24 June 2014, and the
matter was defended. In October 2023 , an application was launched for the
appointment of a curator to act on behalf of Ms Thabethe in these proceedings . In
his founding affidavit , Ms Thabethe’s husband , Mr Simphiwe Thabethe (Mr
Thabethe), was at pains to explain that
’12.1 It is not my submission that the plaintiff is of unsound mind . On the contrary, she is
able to understand the proceedings to a certain extent . However, because of her
persistent and permanent ne uro-cognitive deficits, it is in her best interest , in my
view, that she be assisted in the prosecution and finalization of this action against
The Road Accident Fund.
12.2 ….
4
13. I therefore digress, that I shall not be seeking an order declaring the Plaintiff to be of
unsound mind and incapable of managing her own affairs . However, this position may
change depending on whether her condition deteriorates further as she gets older and
whether she receives the requisite medical treatment and support she needs once her action
against the Road Accident Fund is finalized.’ (Own emphasis.)
The application was granted and a curator ad litem was appointed to assist Ms
Thabethe in the further prosecution of her claim on 15 April 2024.
[8] In opposing the special plea, Mr Moola advanced legal argument on behalf of
the plaintiff from the bar. The thrust of his argument was that the regulations that the
defendant relies on have been declared to be unconstitutional and were set aside by
the Gauteng Division of the High Court in 2021 in Legal Practitioners Indemnity
Insurance Fund NPC v The Minister of Transport and Another.1 He added that the
order of invalidity did not need to be confirmed by the Constitutional Court, as it
relates to regulations and not Acts. In support of this submission, he placed reliance
on Mulowayi and Others v Minister of Home Affairs and Another ,2 where it was held
that:
‘It is trite that declarations of invalidity in respect of regulations are not subject to
confirmation by this Court . However, a party can still appeal to this Court against orders of
constitutional invalidity concerning regulations.’
[9] Mr Moola further placed reliance on the fact that the RAF had conceded
liability and was thus precluded from relying on prescription. He submitted that the
plaintiff was under curatorship and therefore did not have to comply with reg 2(2) , as
it did not apply to her in terms of LPIIF. It was submitted that there had been no
appeal against LPIIF.
[10] Ms Rasool responded that there was no replication and the plaintiff is thus not
entitled to rely on matters falling outside the special plea , such as the concession of
entitled to rely on matters falling outside the special plea , such as the concession of
the merits, which had in any case been withdrawn prior to the issuing of summons.
1 Legal Practitioners Indemnity Insurance Fund NPC v The Minister of Transport and Another (GP)
unreported case no 26286/2020 (21 June 2021) (LPIIF).
2 Mulowayi and Others v Minister of Home Affairs and Another [2019] ZACC 1; 2019 (4) BCLR 496
(CC) para 27 ; see also Minister of Home Affairs v Liebenberg [2001] ZACC 3; 2002 (1) SA 33 (CC)
para 13 and Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others
[2023] ZACC 45; 2024 (3) SA 330 (CC) para 26.
5
[11] I specifically asked the parties if I am precluded from considering the
concession of the merits and the acceptance thereof, even though this formed part of
the plea which was contained in the same document as the special plea. Mr Moola
responded that I ought to consider the particulars of claim and the plea in their
totality as they stand. Ms Rasool, on the other hand , submitted that all the court is
called upon to determine is the special plea which stands alone from the plea and to
which there is no replication.
[12] While I initially held the view that I was bound to have regard to the
concession of the merits, on a proper consideration, it does not form part of the
special plea, the content of which is reproduced in paragraph 3 of this judgment. It is
relevant, as since the plaintiff did not file a replication, it s opposition must be limited
to legal argument. To clarify, the issue of the concession of the ‘merits’ and its
subsequent withdrawal after acceptance thereof would ordinarily be dealt with at the
determination of the action, and has no bearing on the merits or otherwise of the
special plea of prescription. I say this mindful of the provisions of s14 of the
Prescription Act 68 of 1969, which provide for the interruption of prescription through
the acknowledgment of liability.
[13] Having said that , the law seems to me to be clear. The regulations on which
the RAF relies have been found to be unconstitutional and set aside in LPIIF, insofar
as they apply to minors and persons under curatorship . The reason for this was that
they unfairly discriminate between minors and persons under curatorship whose
claims emanate from unidentified vehicles , as opposed to those whose claims
emanate from identified vehicles.
[14] Section 17(1)(b) of the Road Accident Fund Act 56 of 1996 (the Act) provides
for compensation in relation to claims where neither the identity of the negligent
for compensation in relation to claims where neither the identity of the negligent
vehicle nor the driver is known (colloquially referred to as ‘unidentified claims’) . This
section, read with regulation 2(1)( b)3 has been repeatedly found not to be offensive
3 Regulation 2(1)(b) A right to claim compensation from the Fund under section 17(1)(b) of the Act in
respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of
neither the owner nor the driver thereof has been established, shall become prescribed upon the
6
to the Constitution, as the basis of the differentiation is valid and serves a legitimate
government purpose.
[15] It is in reg 2(2) of the Road Accident Fund Regulations, 2008 (the 2008
Regulations) that the differentiation is made which has been found in LPIIF to offend
against the Constitution. It reads as follows:
‘Notwithstanding anything to the contrary contained in any law a claim for compensation
referred to in section 17(1) (b) of the Act shall be sent or delivered to the Fund within two
years from the date upon which the cause of action arose irrespective of any legal disability
to which the third party concerned may be subject.’ (Own emphasis.)
[16] The ‘differentiation’ is in the form of treating persons with legal disabilities the
same as people without such disabilities only in respect of ‘unidentified claims’, while
acknowledging the difference when it comes to identified claims. I agree with the
reasoning in LPIIF that the regulations unfairly discriminate and infringe on the rights
of minors and persons under curatorship to be treated equally before the law ,4 and
that they are accordingly unconstitutional. This is because , indeed, ‘minors and
persons under curatorship do not have the physical and legal capacity and/or
knowledge to lodge claims on their own behalf’.5
[17] However, I am not called upon to determine the constitutionality of the 2008
Regulations, and it appears from the argument of Mr Moola that I ought to consider
myself bound by the declaration of invalidity which was made by the Gauteng
Division of the High Court. This creates somewhat of a difficulty, in that ordinarily an
order of a single judge of a division of the high court is not binding on another
division. I can find nothing that creates a different rule in sofar as orders of
constitutional invalidity6.
expiry of a period of two years from the date upon which the cause of action arose, unless a claim has
been lodged in terms of paragraph (a)
4 LPIIF para 49.
been lodged in terms of paragraph (a)
4 LPIIF para 49.
5 LPIIF para 60.
6 See Shabalala v Attorney-General, Transvaal, and Another; Gumede and Others v Attorney-
General, Transvaal 1995 (1) SA 608 (T) at 618E-F, where the court dealt with the issue of stare
decisis as follows:
‘I see no reason to depart from this salutary principle simply because the point at issue involves an
interpretation of the Constitution.’
7
[18] While I accept that the Constitutional Court has held that it need not confirm
orders of constitutional invalidity of regulations, this creates a difficulty such a s exists
in the present case. The LPIIF judgment is not marked ‘reportable’ or ‘of interest to
other judges’, nor is it available on online case databases like Saflii, LexisNexis or
Juta It appears to underestimate the far-reaching effects of the orders therein
resulting in the fact that the invalidity of the regulation is not widely known or
available. Although the declaration was made in Jun e 2021, the impugned
regulations still read exactly the same as they read under the repealed 1997
regulations, and under the 2008 Regulations. The judgment has simply not been
given effect to five years later , and, in fact , it seems nothing has been done
consequent to the judgment.
[19] The consequence of the above is that there appears to be uncertainty in what
the law is. Regulations to national legislation cannot be unconstitutional in Gauteng
and constitutional in KwaZulu -Natal. It is for that reason that I will consider the
judgment of a single judge in Gauteng to be binding on me insofar as the declaration
of invalidity is concerned. This is also because it s eems to me that there can be no
reasonable justification for treating people with a legal disability , which is ordinarily
freely acknowledged ,7 and is in fact even acknowledged in the Act 8 to which the
2008 Regulations relate, as if they do not have such a disability.
[20] I do find it curious that the impugned regulations have read the same since
the first r egulations in terms of the Act came into operation on 1 May 1997 . The
differentiation was not introduced in the 2008 Regulations.
See also Bookworks (Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council and Another
1999 (4) SA 799 (W) at 810H-811D and Ex parte Minister of Safety and Security and Others: In re S v
Walters 2002 (2) SACR 105 (CC) paras 58-60.
Walters 2002 (2) SACR 105 (CC) paras 58-60.
7 See in this regard s 13 of the Prescription Act.
8 Section 23(2) of the Act specifically contains the following provision in relation to persons involved in
accidents where the identity of the driver is known:
‘(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.’
8
[21] I must also mention that while I accept that a declaration of invalidity of
regulations need not be confirmed by the Constitutional Court, th e court in LPIIF
went further in paragraph 88(3) of its order and held:
‘3. It is declared that section 23(2) of the Road Accident Fund Act, 56 of 1996 is to be read
as including minors and persons under curatorship who claim in terms of section 17(1)(b) of
the Road Accident Fund Act, 56 of 1996.’
In my view , that d eclaration goes further and impacts the Act itself. I do not align
myself with that paragraph of the order in LPIIF.
[22] Having clarified the law, the question then becomes whether the declaration
of invalidity has retrospective application. This is relevant because when the relevant
regulations were set aside on 21 June 2021 , Ms Thabethe was not under
curatorship, as a curator ad litem was only appointed on 15 April 2024 to assist her.
Also, they had not been set aside when she had the accident or lodged the claim.
[23] I will return to whether Ms Thabethe is indeed ‘a person under curatorship’ , in
the true meaning of the concept, later in this judgment. However , I am mindful that
her husband made it clear in his application for the appointment of a curator ad litem
that she is not of unsound mind or incapable of handling her own affairs. Indeed, she
had acted without assistance from the time she lodged the claim until 2024.
[24] In considering whether the declaration of invalidity is retrospective in its
application, I started by looking at the wording of LPIIF. The retrospectivity issue was
not dealt with at all in the body of the judgment , and the court determi ned that ‘a
suspension of the declaration of invalidity will not be just and equitable’.9
[25] Upon realising the relative importance of this determination and that it was
addressed only superficially at the trial, I then sent an email to the parties directing
them to make comprehensive submissions on the question of the retrospective
them to make comprehensive submissions on the question of the retrospective
applicability of the declaration of invalidity. They were given until noon on 24 June
2026 to do so. Only the plaintiff provided written submissions and at 14H30 on 26
June 2026, an email was sent to both parties confirming that no submissions had
been received from the defendant.
9 LPIIF para 87.
9
[26] The plaintiff contends that the declaration of invalidity is retrospective on the
basis that the court did not limit the retrospective effect of invalidity or suspend it, as
empowered by s 172(1)(b) of the Constitution. Reliance is also placed on Cross-
Border Road Transport Agency v Central African Road Services (Pty) Ltd and
Others,10 where the Constitutional Court held that:
‘In summary, the consequences that ordinarily flow from the declaration of constitutional
invalidity include that the law will be invalid from the moment it was promulgated. That is, the
order will have immediate retrospective effect. This is the default position.’
[27] In President, RSA and Another v Women's Legal Centre Trust and Others ,11
the Supreme Court of Appeal held that it is up to parliament to determine if and to
what extent the legislation it enacts should apply retrospectively. When a ‘court
makes a final declaration of constitutional invalidity , without suspension thereof ,
should it consider the consequences of the declaration and whether its retrospective
effect should be ameliorated on just and equitable grounds’.12
[28] In Cape Town City v Independent Outdoor Media (Pty) Ltd and Others ,13 the
court, dealing with a provision in the National Building Regulations and Building
Standards Act 103 of 1977, confirmed that the invalidity existed from the time the
Constitution came into effect. It urged that the court s must have regard to the
consequences of unlimited retrospective effect.
[29] Having exhausted this exercise, it is my view that , indeed, the declaration of
invalidity has retrospective application. This is so because the effect of retrospective
application would be to protect the rights of vulnerable minors and persons under
curatorship. However, this finding is not dispositive of the issue, because , ultimately,
each case is decided on its own facts.
10 Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Others [2015]
ZACC 12; 2015 (5) SA 370 (CC) para 20.
11 President, RSA and Another v Women's Legal Centre Trust and Others [2020] ZASCA 177; 2021
(2) SA 381 (SCA) para 48.
12 Ibid.
13 Cape Town City v Independent Outdoor Media (Pty) Ltd and Others [2023] ZACC 17; 2024 (1) SA
309 (CC) paras 59-62.
10
[30] The reason the regulations were set aside , insofar as the y related to minors
and people under curatorship , was their failure to acknowledge that minors and
persons under curatorship do not have the physical and legal capacity to lodge
claims on their own behalf. It was to address an impossibility of compliance. It is
those people that the declaration protects.
[31] Returning now to the issue of whether Ms Thabethe was indeed a person
under curatorship, the facts in the present case are that Ms Thabethe acted for
herself from the date of the accident in July 2009, to when the claim was lodged in
2012, until 20 24 when she was placed under curatorship , more than 10 years after
the lodgement of the claim. She did not lack the physical or legal capacity to lodge or
indeed prosecute her claim , as confirmed by her husband. She cannot, in my view,
claim the protection of the declaration of invalidity.
[32] Therefore, while, indeed, the regulations were unconstitutional from inception,
this only applies to persons who could not have lodged their claims timeously
because of the legal impediment. The plaintiff’s submission that ‘the regulations have
been set aside’ and that the special plea therefore should be dismissed appears to
miss the point that the declaration only applies to a limited group of people.
[33] In summary, I find that reg 2(1)(b) and 2(2) have been declared
unconstitutional and set aside to the extent that t hey relate to minors and persons
under curatorship. This declaration applies retrospectively and such regulations were
unconstitutional from the date on which they came into effect in 2008, to the extent
that they relate to minors and persons under curatorship.
[34] At the time of the accident, and at the time of the lodgement of the claim and
for 10 years thereafter, Ms Thabethe was no t a minor or a person under curatorship.
Moreover, she did lodge the claim and did do all things necessary to ensure that the
Moreover, she did lodge the claim and did do all things necessary to ensure that the
claim was prosecuted. Even when a curator ad litem was appointed to assist her, her
husband made it clear that she is ‘capable’. It is therefore my conclusion that the
declaration of invalidity does not apply to Ms Thabethe and her claim.
11
[35] It is unfortunate that knowing the far-reaching consequences of upholding the
special plea of prescription, the plaintiff’s representatives elected to argue it from the
bar and without filing a replication.
[36] For the sake of comple teness, regarding the issue of the concession of the
‘merits’ which was accepted, it is my view that the claim, having prescribed by virtue
of not having been lodged timeously in terms of the Act and the 2008 Regulations,
could not be resuscitated by conceding the merits after the fact 14. Although not
strictly before me, I deemed it prudent to also address this argument, given the
impact of the conclusion I have reached in relation to the special plea.
[37] Insofar as the issue of costs is concerned, I have borne in mind that the
amendment which sought to raise the special plea was brought at the eleventh hour
by the defendant, and that the plaintiff allowed the amendment and opposed the
special plea from the bar. I do not agree with Ms Rasool that the defendant is entitled
to costs in that context. In my view , despite the success of the defendant, it would
not be just to saddle the plaintiff with costs.
[38] In the result, having considered the special plea and having heard counsel, I
grant the following order:
1. The special plea of prescription is upheld.
2. Each party shall bear its own costs.
____________________
SIBIYA J
14 In Road Accident Fund and Another v Mdeyide [2010] ZACC 18; 2011 (2) SA 26 (CC) para 20 the
Constitutional Court held that:
‘The RAF Act furthermore makes no provision for condonation of a late claim, either based on the
ignorance of the claimant, or for any other reason.’
12
Appearances
Counsel for the Plaintiff: Mr F Moola SC
Instructed by : Chetty Asmall & Maharaj Attorneys
Reference : KC/MHS/jd/RT3
Counsel for Defendant : Ms Z Rasool
Instructed by : State Attorney KwaZulu-Natal
Reference : Ms P Chetty/R/LINK 3197541
Date of Hearing : 08 June 2026
Date of Judgment : 07 July 2026