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[2018] ZASCA 75
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Kekana v Road Accident Fund (206/2017) [2018] ZASCA 75 (31 May 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 206/2017
In
the matter between:
NTUNTU
DAVID KEKANA
APPELLANT
and
ROAD
ACCIDENT FUND
RESPONDENT
Neutral
citation:
Kekana
v Road Accident Fund
(206/17)
[2018] ZASCA 75
(31 May 2018)
Coram:
Shongwe
ADP, Leach and Mbha JJA and Pillay and Mothle AJJA
Heard:
15
May 2018
Delivered:
31
May 2018
Summary:
Interpretation
–
s 12(3)
of the
Prescription Act 68 of 1969
– whether
knowledge of a duty of care constitutes a factual or legal conclusion
– whether acceptance of offer by a
claimant with hindsight and
new information constitute facts from which the debt arose –
appeal dismissed.
ORDER
On
appeal from:
Gauteng
Division, Pretoria (Janse van Nieuwenhuizen J sitting as court of
first instance):
The
appeal is dismissed with costs.
JUDGMENT
Shongwe
ADP (Leach and Mbha JJA and Pillay and Mothle AJJA concurring)
[1]
This appeal, with leave of the court a quo, is against the judgment
and order upholding a special plea of prescription. The
crisp
question before the court a quo was thus whether the appellant had
actual or deemed knowledge of the facts from which the
debt arose. In
essence it concerns the proper construction of s 12(3) of the
Prescription Act 68 of 1969 (the Act).
[2]
The background facts are that on 8 August 1996, the appellant, a 57
year old male detective employed with the South African
Police
Services, was involved in a motor vehicle accident in which he
sustained bodily injuries. He subsequently lodged a direct
claim for
damages against the respondent, the Road Accident Fund (the Fund), a
juristic person incorporated in terms of the Road
Accident Fund Act
56 of 1996 (the RAF Act). The Fund proposed a settlement figure of
R48 853.31, which the appellant rejected.
On 2 August 1999 the
Fund made an improved offer in the sum of R63 088.45 in full and
final settlement. The appellant was
still unhappy, as he could not
understand why the offer was below his medical costs. The Fund
explained to the appellant that in
1998 he had injured his loin in an
unrelated incident; that the offer was fair and reasonable in the
circumstances; that if he
appointed an attorney to assist him such
costs would be for his own account; and that his claim was nearing
prescription. In order
to avoid further costs, the appellant accepted
the offer.
[3]
In 2013 the appellant read a newspaper report on how a certain
person, who had been under-compensated by the Fund, but who after
consulting an attorney was able to ‘resuscitate’ his
claim under similar circumstances. The appellant consulted with
an
attorney who advised him that he had been under-compensated. Hence
the summons was issued in 2013. The cause of action was that
the Fund
had failed to act in the best interests of the appellant in that it
ignored a report of a neurosurgeon specialist who
examined him and
found that he had a permanent disability; that the Fund failed to
discharge its duties by advising him properly
as a direct claimant;
and that the Fund failed to act in accordance with its policy to
treat the direct claim fairly and compensate
the appellant
accordingly.
[4]
The Fund raised,
in
limine
,
a special plea of prescription, arguing that the appellant’s
claim had prescribed, more than three years having expired
after it
had arisen , in terms of s 11 of the Act. The motor vehicle accident
occurred in 1996 and the settlement was concluded
in 1999. However,
the summons was issued and served in 2013. The court a quo upheld the
special plea and consequently dismissed
the appellant’s claim.
[5]
The appellant contended that prescription only started to run when he
read the newspaper report in 2013. Until then he lacked
the required
knowledge of the necessary facts as contemplated in s 12(3) of the
Act.
[6]
On the other hand the respondent contended that the period of
prescription in this case is three years (s 11(
d
)
of the Act). Thus, it acknowledged that it bore the onus to show when
the debt became due. (See
Macleod
v Kweyiya
[2013] ZASCA 28
;
2013 (6) SA 1
(SCA) para 10.) The respondent further
contended that the appellant knew the identity of the respondent as
debtor and knew that
the respondent was obligated to compensate him.
Despite believing that the offer was inadequate, the appellant
accepted it, which
in the respondent’s view that was the end of
the matter.
[7]
It is trite that prescription commences to run as soon as the debt
becomes due. In this light, it is instructive to examine
the
provisions of s 12 and more particularly s 12(3) of the Act. It
provides that:
‘
12.
When prescription begins to run.
(1) Subject
to the provisions of
subsections
(2)
,
(3)
,
and (4), prescription shall commence to run as soon as the debt is
due.
(2) If
the debtor wilfully prevents the creditor from coming to know of the
existence of the debt, prescription shall not commence
to run until
the creditor becomes aware of the existence of the debt.
(3) A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from
which the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising
reasonable
care.’
[8]
The facts of this case are clear. The accident occurred on 8 August
1996. The appellant filed his claim on time and he accepted
the offer
of settlement in 1999, albeit under protest. He knew that he would be
responsible for the legal fees incurred. However
the appellant did
nothing until approximately 14 years later when he acquired
information that he could revive his claim. The information
he
acquired in 2013 had no relation to the facts from which the debt
arose. It had to do with a legal conclusion that the respondent
could
be liable on the basis of a duty of care. Summons was served on 18
October 2013 which was well over the three year period
prescribed in
s 11(
d
)
of the Act. Counsel for the appellant readily conceded that no valid
cause of action was pleaded. The appellant alleged in the
particulars
of claim that the cause of action was premised on the duty of care,
which is in fact and in law not a cause of action.
Clearly the
appellant appreciated and believed from as early as 1999, that a
wrong had been committed against him by the respondent.
Between 1999
and 2013 there were no new facts that emerged which the appellant
could present to the respondent. The newspaper reports
the appellant
read in 2013 was merely an opinion in the form of a conclusion that
there had been negligence, which opinion was
based on the same facts
which had been available from 1996 and or 1999.
[9]
In
Truter
& another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) paras 16 and 17 the court observed that:
‘
A debt is due
in this sense when the creditor acquires a complete cause of action
for the recovery of the debt, that is, when the
entire set of facts
which the creditor must prove in order to succeed with his or her
claim against the debtor is in place or,
in other words, when
everything has happened which would entitle the creditor to institute
action and to pursue his or her claim.
In a delictual claim, the
requirements of fault and unlawfulness do not
constitute
factual
ingredients
of the cause of action, but are
legal
conclusions
to be drawn from the facts’.
(See
also
Evins
v Shield Insurance Co Ltd
1980
(2) SA 814
(A) at 838D-H; M M Loubser
Extinctive
Prescription
(1996) para 4.6.2 at 80 – 81.)
In
delictual actions the presence or absence of negligence is not a
fact. It is a conclusion of law to be drawn by the trier of
facts in
all the circumstances of the particular case. (See
Mkhatswa
v Minister of Defence
2000 (1) SA 1104
(SCA) paras19 and 23.)
[10]
Section 12(3) of the Act contains a deeming provision that the
creditor is deemed to have such knowledge if he could have acquired
it by exercising reasonable care. The appellant was a police officer
who ought to have known that he could approach an attorney
for legal
advice at any time, one may even go further to say that he was aware
that he could get the necessary help but did not
want to pay legal
fees.
[11]
In conclusion, if the appellant failed to appreciate the legal
consequences which flowed from the facts, his failure to do
so did
not delay the running of prescription. (See
Claasen
v Bester
[2011] ZASCA 197
;
2012 (2) SA 404
(SCA) para 15;
ATB
Chartered Accountants (SA) v Bonfiglio
[2010] ZASCA 124
;
[2011] 2 All SA 132
(SCA) paras 14 and 18.) I am
unable to find fault with the order and judgment of the court a quo.
[12]
In the result the appeal is dismissed with costs.
_______________________
J
B Z Shongwe
Acting Deputy
President Supreme Court of Appeal
Appearances
For
the Appellant:
D J Joubert SC (with him M Kgomongwe)
Instructed by:
T L Kekana
Attorneys, Pretoria;
Phatshoane Henney
Attorneys, Bloemfontein
For
the Respondent:
J Myburgh
Instructed by:
Mothle Jooma Sabdia
Incorporated, Pretoria;
Maduba
Attorneys, Bloemfontein