IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN	CASE NO. CA 277/2015 

In the matter between:
ROAD ACCIDENT FUND	Appellant

and

WELLINTON SEBENZILE NTONI	Respondent

JUDGMENT

Bloem J. 
[1]	The respondent claims that on 21 September 2002 a motor vehicle collided with him.  Neither the identity of the owner nor that of the driver of the motor vehicle has been established by him.  On 9 October 2007 he caused summons to be served on the Road Accident Fund, the appellant herein, wherein he claimed compensation for the damages which he suffered as a result of the bodily injury sustained by him caused by or arising from the collision.  The appellant pleaded that the respondent’s claim against it prescribed.  On 21 April 2015 the court a quo ordered that the special plea of prescription be separated from the merits of the respondent’s claim, that the special plea be dealt with first and postponed the determination of the merits sine die.  There was a dispute between the parties as to who bore the duty to begin.  On that same day the court a quo ruled that the appellant, as the party who raised the special plea, should begin first.
[2]	The appeal record shows that no evidence was led by either party.  The court a quo dismissed the special plea on the basis of the pleadings, documents made available to the court a quo during the parties’ respective addresses and admissions made during those addresses.   It is with the leave of the court a quo that the appellant now appeals against that dismissal of its special plea of prescription.
[3]	In my view the appeal must be upheld for two reasons.  Firstly, the issue regarding prescription was decided in terms of the Prescription Act whereas the Road Accident Fund Act should have been applied.  Secondly, no evidence or agreed facts were placed before the court a quo to determine whether or not the respondent’s claim had prescribed.
[4]	Regarding the pleadings, the appellant pleaded that it has no knowledge of the collision, the insured driver’s alleged negligence, the injuries allegedly sustained and the damages allegedly suffered by the respondent.  It did not admit or deny those allegations and put the respondent to the proof thereof.  The appellant admitted that the respondent timeously lodged his claim but denied that the respondent complied with the Road Accident Fund Act “in so far as the Summons commencing action is concerned”.  The quoted words, in the circumstances of the case, should be interpreted to mean that the appellant denies that the respondent issued the summons within the prescribed period.
[5]	In the appellant’s special plea it contends that, because the respondent caused the summons to be served on it on 9 October 2007 after the collision occurred on 21 September 2002, the respondent’s “claim is hit by the provisions of Regulation 2 (4)” which provide that a claim, such as the present one, shall be extinguished upon the expiry of a period of five years from the date upon which the claim arose.  
[6]	In his replication to the appellant’s special plea the respondent denied that his claim against the appellant became prescribed and unenforceable and pleaded that:
“2.1	the collision on which he relies took place on 21 September 2002;
2.2	the Plaintiff submitted his claim form in due compliance with the provisions of Act 56 of 1996 and the Regulations promulgated thereunder on 1 March 2004;
2.3	the Defendant finally rejected the Plaintiff’s claim form on 17 February 2006 on the basis that the Regulation 2 (1) (c) affidavit had not been submitted within the fourteen (14) day time period referred to in that Regulation;
2.4	the Defendant’s objection was based on the judgment in RAF v Thugwana 2004 (3) SA 169 (SCA) in which it was held that Regulation 2 (1)  (c) was clearly peremptory;
2.5	the Plaintiff conceded that he lodged his Regulation 2 (1) (c) affidavit out of time;
2.6	the Plaintiff was therefore non-suited and could not in law institute proceedings against the Defendant for recovering from his damages sustained in the said collision (sic);
2.7	in the premises the Plaintiff had no action/debt to enforce against the Defendant;
2.8	in the further premises there existed no right/debt against which prescription could run;
2.9	on 6 March 2007 it was held in Engelbrecht v RAF 2007 (6) SA 96 (CC) that Regulation 2 (1) (c) was unconstitutional.  The Regulation was struck down/severed from the other provisions of Regulation 2 (1) with immediate effect;
2.10	in the premises the Engelbrecht judgment entitled the Plaintiff in law to pursue his claim for damages against the Defendant arising out of the said collision without the filing of a Regulation 2 (1) (c) affidavit;
2.11	the Defendant’s rejection of the Plaintiff’s claim on 17 February 2006 was now bad in law and the Plaintiff became entitled to issue and serve Summons against the Defendant;
2.12	on 9 October 2007 the Plaintiff therefore served Summons on the Defendant in pursuance of his claim for damages arising out of the injuries sustained in the said collision.”
[7]	The court a quo decided the prescription issue on the basis of section 12 (3) of the Prescription Act which provides that 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.  The learned judge found that there was no issue in so far as the identity of the debtor was concerned.  The respondent knew as early as 9 March 2004, when he lodged his claim, that the Road Accident Fund was the debtor.  However, regarding the facts from which the debt arose, the court a quo stated that “information, not to mention developments in law, could not have been within [the respondent’s] easy reach” and found that, after Road Accident Fund v Thugwana, the respondent’s “claim was not enforceable against the Road Accident Fund” but “the possibility that he could have an enforceable claim loomed large only after” Engelbrecht v Road Accident Fund and Another, a judgment delivered by the Constitutional Court on 6 March 2007.  For the sake of completeness, the Supreme Court of Appeal in Thugwana held that the provisions of regulation 2 (1) (c) were peremptory and not ultra vires but subsequently the Constitutional Court in Engelbrecht declared regulation 2 (1) (c) inconsistent with section 34 of the Constitution and accordingly invalid.
[8]	In my view it was unnecessary to enquire into whether or not the respondent had knowledge of the facts from which the debt against the appellant arose.  It became necessary for the learned judge to embark on that enquiry only once reliance was, with respect, incorrectly placed on the provisions of section 12 (3) of the Prescription Act.  The respondent’s claim is based on the Road Accident Fund Act which, in section 23 thereof, provides for the prescription of claims.  In Road Accident Fund and Another v Mdeyide the Constitutional Court examined the provisions of section 23 (1) of the Road Accident Fund Act and section 12 (3) of the Prescription Act and found that, because they are different, section 12 (3) of the Prescription Act cannot apply to claims under the Road Accident Fund Act.  In the circumstances, the application of section 12 (3) of the Prescription Act to the respondent’s claim was, with respect, incorrect.  The court a quo should have applied the provisions of section 23 (1) of the Road Accident Fund Act to determine whether or not the respondent’s claim had become prescribed.  
[9]	I revert to the fact that no evidence was led by either party.  The appellant placed various letters which were exchanged between the parties’ respective attorneys before the court a quo.  The parties seemed to have laboured under the impression, wrongly so, that those letters constituted evidence.  There was no agreement between the parties as to the evidentiary value of those letters.  The present situation is akin to what Griffiths J described as “a trial without a trial”.  The appellant should have placed evidence or sufficient agreed facts before the court a quo to substantiate its plea of prescription.  The issue of prescription could not properly have been determined without evidence or agreed facts.  With respect, it was accordingly inappropriate for the court a quo to reach a final conclusion on the issue of prescription on the basis of the pleadings and the above correspondence alone.
[10]	Mr Frost, counsel for the appellant, submitted that once the judgment of the court a quo is set aside, we should uphold the special plea of prescription because of the absence of evidence to substantiate it.  That submission cannot be upheld.  It would also be inappropriate for us, as a court of appeal, to determine whether or not the respondent’s claim has prescribed without evidence or agreed facts upon which such a determination can be made.  In the circumstances of this case it would be just to refer the action back to the court a quo to determine, on the basis of evidence or agreed facts, whether or not the respondent’s claim has prescribed.
[11]	Regarding costs, the appellant has succeeded in having the judgment of the court a quo set aside on appeal.  The appellant is entitled to the costs of the appeal, such costs to include the costs of the application for leave to appeal.  Regard being had to the respondent’s socio-economic situation, he will in all probability be unable to prosecute his claim if he must pay the above costs before the appellant’s special plea of prescription in the court a quo is finalised.  The appellant, on the other hand, will not be prejudiced if the respondent is ordered to pay those costs once the court a quo has determined the issue of prescription. 
[12]	In the result, the following order is made.
12.1.	The appeal is upheld.
12.2.	The order of the court a quo is set aside.
12.3.	The matter is referred back to the court a quo to determine, on the basis of evidence or agreed facts, whether or not the respondent’s claim has prescribed.
12.4.	The respondent is to pay the costs of the appeal, such costs to include the costs of the application for leave to appeal.
12.5.	The appellant shall not execute the above costs order against the respondent until the court a quo has determined the issue of prescription. 

_________________________ 

G H BLOEM
Judge of the High Court

MBENENGE J

I agree.

_________________________ 
S M MBENENGE
Judge of the High Court

COSSIE AJ

I agree.

_________________________ 
C COSSIE
Acting Judge of the High Court

For the appellant:	Adv A Frost, instructed by Friedman Scheckter, Port Elizabeth and Neville Borman and Botha, Grahamstown	

For the respondent:	Adv HJ van der Linde SC with Adv PH Mouton, instructed by Rayno Peo Attorneys, Port Elizabeth and Nettletons Attorneys,  Grahamstown

Date heard:	7 March 2016

Date of delivery of the judgment:	9 March 2016