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[2026] ZAMPMBHC 76
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Hlekani v Road Accident Fund (3538/2024) [2026] ZAMPMBHC 76 (11 August 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
Case
No.:
3538/2024
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED
NO
DATE
11/08/2026
SIGNATURE
In the matter between:
NYIKO
FORTUNE HLEKANI
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
VUKEYA
ADJP
[1]
Nyiko Fortune Hlekani, (“the
plaintiff”) instituted legal proceedings for damages
against
the Road Accident Fund (“the defendant”) following a
motor vehicle accident that occurred on 6 January 2016.
The defendant
entered an appearance to defend the plaintiff’s claim. As part
of its defence to the plaintiff’s claim,
the defendant raised a
special plea of Prescription and, in turn, the plaintiff raised a
replication to the defendant's special
plea.
[2]
This judgment concerns only the
special plea as it addresses the issue of prescription.
[3]
The defendant alleges that the
plaintiff's claim was not lodged timeously in terms of section
23(1)
of the Road Accident Fund Act 56 of 1996 (“the RAF Act”)
and has therefore prescribed.
[4]
It is common cause that the
accident which is the bone of contention of the main application
happened on 6 January 2016. According to the defendant, the plaintiff
was required, in terms of Section 23(3) of the RAF Act to
issue and
file summons within a period of 5 years from 6 January 2016. It
contends that the plaintiff's claim in her personal capacity
has
become prescribed in that a period of 5 years, within which she was
supposed to issue and serve its summons to the defendant
expired on 5
January 2021.
[5]
It was argued on behalf of the
defendant that the plaintiff was aware of the cause of action
and the
identity of the debtor and therefore nothing stopped the running of
prescription of the 5-year period. According to Counsel,
the
plaintiff failed to state that she did not have the requisite
knowledge that she was supposed to issue summons within five
(5)
years. Counsel argued that it was the plaintiff’s
responsibility to ensure that her claim was properly instituted and
the duty of care only applies where the plaintiff lacked the
knowledge. It was therefore submitted that the plaintiff’s
claim falls to be dismissed with costs.
[6]
The plaintiff submitted that
having made a direct claim to the RAF, she could not have
reasonably
known that the matter was still open to prescription. In her defence,
she argues that the RAF should have informed her
if there was
anything outstanding from her side for them to process her claim, but
they failed to do so. It was argued on behalf
of the plaintiff that
the RAF failed to take any steps to enlighten the plaintiff about
issues of prescription and can therefore
not plead prescription.
[7]
Counsel for the plaintiff argued
on her behalf that the claimant's lack of knowledge about
their
rights can be a crucial factor in determining whether a claim has
prescribed. He referred this Court to the case of
Moremedi vs Road
Accident Fund
(86838/19) [2024] ZAGPPHC 1338 (18 December 2024)
where the court held that prescription only begins to run when the
claimant has
the necessary knowledge of the facts or when they
reasonably could have acquired it.
[8]
Relying on the case of
Makgati
vs RAF
(7316/2022) [2025] ZALMPPHC 27 (12 FEBRUARY 2025), Counsel
argued that the RAF has a duty to take reasonable steps to prevent
direct
claims from prescribing. He submitted that the defendant
failed in its duty of care to inform the plaintiff of prescription
and
to assist her by explaining steps she needed to take to avoid
prescription. He prayed for the dismissal of the defendant’s
special plea.
[9]
The issues to be determined in this special
plea are whether the plaintiff’s claim has prescribed
and
whether the defendant has a duty to assist a claimant to take steps
to prevent a direct claim from prescribing.
[10]
The defendant bears the onus to prove that the
plaintiff’s claim had prescribed by the given date.
For the
defendant to prove that, he must show that prescription began to run
against the plaintiff’s claim not later than
5 January 2021. It
must also show what the facts are that the plaintiff was required to
know before prescription could commence
running and that the
plaintiff had knowledge of those facts on or before 5 January 2021.
[11]
Section 23 of the RAF Act provides
that:
(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 24
shall prescribe
before the expiry of a period of five years from
the date on which the cause of action arose
. [My emphasis]
[12]
Section 24(1) requires that a claim for
compensation be lodged in the prescribed manner and form.
It provides
that a claim for compensation and accompanying medical report under
section 17 (1) shall be set out in the prescribed
form, which shall
be completed in all its particulars; be sent by registered post or
delivered by hand to the Fund at its principal,
branch or regional
office, or to the agent who in terms of section 8 must handle the
claim, at the agent's registered office or
local branch office, and
the Fund or such agent shall at the time of delivery by hand
acknowledge receipt thereof and the date
of such receipt in writing.
[13]
There was no dispute between the parties that the
plaintiff’s application was lodged with the defendant
in terms
of section 24 of the RAF Act and that in terms of section 23 (3) it
would prescribe before the expiry of five years from
6 January 2016,
namely, 5 January 2021.
[14]
It remains common cause that the accident happened
on 6 January 2016 and that the plaintiff issued summons
on 31 July
2024, seven (7) years after the accident happened. It is also
undisputed that the plaintiff personally lodged her claim
against the
defendant by submitting her RAF 1 form to the defendant on 12 August
2016 with the assistance of the defendant’s
employee. The claim
was captured on the defendant’s system under claim number
546/12420436/09/0 with link number 3938799,
at this point, the claim
had not prescribed.
[15]
No evidence was led in this application and the
court relied on the parties’ pleadings, namely, the
plaintiff’s
particulars of claim, the defendant’s plea, special plea and
the plaintiff’s replication to the special
plea. In her
particulars of claim the plaintiff stated that she would, from the
date of lodgement of claim to date, call the defendant's
relevant
claims handler to check progress of the claim and the defendant would
on all occasions tell the plaintiff to be patient
as the claim was
still under investigation.
[16]
The plaintiff, being a layperson and having made a
direct claim to the defendant, was not reasonably expected
to have
known that the matter was still open to prescription. Instead of
being assisted by the defendant’s employees and
informed of her
claim which was due to prescribe, she was told to be patient as the
RAF was busy investigating her claim. From
the papers which were
presented before me, there is no indication that the defendant was
doing anything to assist the plaintiff.
The defendant’s
employees should have informed the plaintiff if there was anything
outstanding from her side for them to
process her claim, but they
failed to do.
[17]
In
Lottering v Chief Executive Officer of the
Road Accident Fund N.O and Another
(1541/2018)
[2021] ZANCHC 36
(13 August 2021) Williams J remarked as follows:
“
25. The
court held in Johannesen that where the RAF represents to
a
claimant that it will assist in settling a claim without external
legal advice, a greater duty of care rests on the RAF to take
all
reasonable steps to prevent claims prescribing in its hands –
which steps would include responding to the claimant’s
enquiries, bringing the matter to finality, and informing the
claimant about the rejection or prescription of the claim. In the
absence of evidence by the RAF of the reasonable steps taken to
contact the plaintiff or to properly process the claim, it would
be
unjust for the RAF to benefit from inaction on its part.
26. I
agree with the responsibilities and duties of the RAF expressed in
the
above-mentioned matters. In addition, Mr Nortier has referred to
s 24(5) of the Act as being the nail in the coffin for the RAF.
S 24
(5) provides the RAF with 60 days in which to object to the validity
of a claim, failing which it shall be deemed to be valid
in law in
all respects
.”
[18]
When the plaintiff, a layperson, lodged her claim
directly with the defendant, the defendant assumed the
position of
being the plaintiff’s legal representative. This means it would
have to advice, assist in settling the claim
,
respond to the plaintiff’s enquiries, assist in bringing
the matter to finality, and inform the plaintiff about the rejection
or prescription of the claim as it was stated in Lottering (supra).
[19]
There is no evidence that the defendant alerted
the plaintiff to the possibility of her claim prescribing.
I agree
with what was stated in Makgati (supra) that the defendant’s
duty to care extends beyond just accepting the lodgement
of the
plaintiff’s claim. The defendant, particularly where direct
claims are lodged has a duty to take reasonable steps
to prevent
claims from prescribing.
[20]
Clearly, the defendant failed in its duty of care
and ensuring that the plaintiff is provided with enough
information
relating to the progress made in her claim and at least information
relating to a looming prescription of her claim.
My considered view
is that the defendant has failed to discharge the onus it had to
prove that the plaintiff’s claim had
prescribed and that the
defendant’s special plea of prescription falls to be dismissed.
[21]
Consequently, the following order is made:
21.1. The
defendant’s special plea of prescription is dismissed.
21.2. The
defendant is ordered to pay the plaintiff’s costs on High Court
Scale B.
VUKEYA LD
ACTING
DEPUTY JUDGE PRESIDENT
APPEARANCES:
For
the Plaintiff
: Adv. Musa Sithebe
Plaintiff’s
Attorneys:
Ms
Madingana Matimu Attorneys
Tel:
015 280 0773
Cell:
068 1 63 2120
Cell:
083 222 9888 (Counsel)
Email:
[email protected]
[email protected]
For
the defendant
: Adv. N Zwane
Defendant’s
Attorneys:
STATE
ATTORNEY
NELSPRUIT
Tel: 013 101 3722
Email:
[email protected]
REF
NO: 3938799