IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN

Reportable:                              YES/NO
Of interest to other Judges:   YES/NO
Circulate to Magistrates:        YES/NO	
							              
                                                                   Case no. 5853/2018
In the matter between:
TINEO ISAACS MOCHEKOANE                                                Plaintiff
and
ROAD ACCIDENT FUND                                                      Defendant
_________________________________________________________
JUDGMENT BY: MATSHAYA, AJ

HEARD ON:         19 OCTOBER 2021

DELIVERED ON:  28 OCTOBER 2021

INTRODUCTION
[1] This matter concerns the determination of a special plea in terms of section 23(3) of the Road Accident Fund Act (the Act). The Plaintiff instituted an action for damages he allegedly suffered during a motor vehicle accident that occurred on 29 October 2008 in which he was a passenger. The Defendant resisted the action by raising the special plea as afore-mentioned contending that the Plaintiff’s claim had prescribed. Subsequent to an agreement between the parties, I ordered in terms of Uniform Rule 33(4) that the special plea be adjudicated separately from the main case and the proceedings in the main case be stayed pending the outcome of this special plea.
THE PLEADINGS
[2] The Plaintiff avers in his particulars of claim that on 29 October 2008 he was a passenger in a motor vehicle with registration number CNZ 466 FS. The said motor vehicle, which was allegedly driven by the insured driver of the Defendant, left the road and bumped against a tree and capsized at the corner of Dewetsdorp and N-6 Roads, Mangaung. According to the Plaintiff, the insured driver was negligent and is therefore the sole cause of the accident. The Plaintiff allegedly sustained serious injuries and suffered damages in the amount of R3 823 779 of which R700 000 is for general damages inclusive of pain and suffering, loss of amenities of life and disfigurement.  
THE SPECIAL PLEA
[3] The Defendant pleaded that since the accident occurred on 29 October 2008, the Plaintiff had until 28 October 2013 to issue summons. Therefore the claim had already prescribed when summons was served on the Defendant on 27 November 2018. Defendant made reference to section 23(3) of the Act.  
THE ISSUES
[4] The main issue for determination is whether the Plaintiff’s claim had prescribed at the time that summons was served on the Defendant on 27 November 2018.  
THE STATED CASE
[5] For the sake of adjudication of these proceedings both parties filed a stated case in which they agreed on the following admissions:
(a) That the date of collision is 29 October 2008;
(b) That the Plaintiff submitted the claim and RAF 1 form directly to the Defendant on 24 April 2009;
(c) That the Plaintiff’s attorneys served summons on the Defendant on 27 November 2018;
(d) That the Defendant raised a special plea of prescription on 14 July 2021; and
(e) That the Defendant received a letter from Pretorius Attorneys dated 24 October 2018 enclosing a copy of the claimant’s identity document, termination of the mandate given to the Defendant dated 19 July 2017, Special Power of Attorney in favour of Pretorius Attorneys and a letter addressed by Pretorius Attorneys to the Defendant dated 17 April 2018.   
 [6] Neither of the parties led evidence before this court to support their respective cases. Therefore I am confined to the stated case to adjudicate the matter. 

THE DEFENDANT’S CASE
 
[7] The Defendant pleaded that the Plaintiff’s claim prescribed on 28 October 2013 even though the Plaintiff had lodged his claim directly with the Defendant timeously. Its main argument was based on the following authorities:

7.1Section 23 (3) of the Act;
7.2 Road Accident Fund and Another v Mdeyide; and
7.3 Van Zyl NO v Road Accident Fund;
which I discuss hereunder.  

[8] It was also the Defendant’s case that the Plaintiff did not plead negligent handling or lack of duty of care pertaining to the manner in which the Defendant handled his case as he belatedly sought to do in argument and that therefore, the Plaintiff should stand and fall by his papers. Lastly, it contended that the authorities upon which the Plaintiff relied to counter its case were wrongly decided and those respective courts erred by condoning the plaintiff’s claims. 

THE PLAINTIFF’S CASE

[9] The Plaintiff’s main argument was that his claim cannot prescribe at the hands of the Defendant since the claim was lodged timeously, directly with the Defendant. But he admitted that the summons was served beyond the five year prescription period. He then submitted that the Defendant negligently breached the duty of care owed to him when handling his claim and hinged his arguments, mainly on the judgments in 

Mokoena v Road Accident Fund and
Ralph v Road Accident Fund. 

ANALYSIS
[10] Section 23 of the Act states as follows: 
(I) “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, 5 shall become prescribed upon the expiry of a period of three years from the date upon which the cause of action arose.
(2) …
(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.”
[11] It is trite that the Defendant bears the full evidentiary burden on a balance of probabilities to prove its special plea of prescription, including the date on which the Plaintiff obtained actual or constructive knowledge of the debt. This burden shifts to the Plaintiff only if the Defendant has established a prima facie case.
[12] The date on which the Plaintiff obtained knowledge of the debt is not in dispute. Evidently, in terms of section 23(3) of the Act the Plaintiff’s claim has prescribed since summons was served beyond the stipulated 5 year period. 
 [13] To put context into my reasoning it is important to reflect on the brief history of the plea of prescription particularly in terms of the Act. Before Mdeyide, there was uncertainty regarding when prescription starts to run in terms of the Act in view of section 12(3) of the Prescription Act. Mdeyide found that:
“In terms of section 23(1) of the RAF Act, on the other hand, prescription runs the date upon which the cause of action arose. The term cause of action has been defined as “every fact which . . . would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. In the case of claims under the RAF Act, the elements of a cause of action are established in terms of section 17 and include bodily injury or death, caused by or arising out of the negligent driving of a motor vehicle, or a wrongful act on behalf of the driver or owner of the motor vehicle”

[14] Further, it was held in Van Zyl NO (with reference to Mdeyide) that prescription of claims in terms of section 17 of the Act is regulated exclusively by section 23 of the Act, not the Prescription Act. 
 [15] The significance of the above is that in matters pertaining to section 23 of the Act (like the present), prescription is triggered from the date of the accident as the cause of action lies in the accident. In this case, it is common cause that the date of accident is 29 October 2008 and therefore prescription started running from the said date hence Ms Canham for the Defendant submitted that the Plaintiff had until 28 October 2013 to serve summons. In my view, this presented a prima facie defence of special plea of prescription which then shifted the onus to rebut it to the Plaintiff.  
[16] The next question that I must decide is whether the alleged duty of care by the Plaintiff takes away the Defendant’s insulation provided by section 23(3). Ms Canham argued that the Plaintiff could not rely on the alleged breach of duty of care since it was never pleaded. To counter this, counsel for the Plaintiff, Mr Van Der Merwe, submitted that the effect of the Plaintiff’s failure to replicate to the Defendant’s plea is that he denied the Defendant’s plea.Therefore the Defendant was required to prove its special plea and the matter should end there. To me, the Plaintiff’s argument cannot be sustained for various reasons, inter alia, the following:
[16.1] This was never pleaded by the Plaintiff. As Ms Canham correctly submitted: 
“[11] The purpose of pleadings is to define the issues for the other party and the court. A party has a duty to allege in the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case.”    
The Plaintiff was well aware or at least ought to have been aware at the time of serving his summons that his claim had prescribed in terms of section 23(3) of the Act. Therefore, he should have specifically pleaded the Defendant’s negligent duty of care, which in any event would have constituted a different cause of action if he intended to rely on it. But he deliberately opted not to. The cause of action in this case arises out of a motor vehicle accident and not the alleged negligent handling of the Plaintiff’s claim by the Defendant.  For that he has to suffer on his peril.  
[16.2] Furthermore, the facts of this case are distinguishable from those of Ralph and Mokoena. In Ralph, the Defendant had conceded to a duty of care, which is not the case before me. In Mokoena the Plaintiff had specifically pleaded the lack of duty of care by the Defendant and the court was only called upon to decide the extent of the Defendant’s duty of care towards the Plaintiff. This is not the case before me as I am only called upon to decide whether the Plaintiff’s claim has prescribed in view of section 23(3) of the Act. 
[17] Ms Canham also submitted that the Ralph and Mokoena decisions were wrongly decided. Mr Van Der Merwe diverged vehemently to that submission. It is important to note that in Mdeyide the constitutional court stated it unequivocally that:
 “The RAF Act makes no provision for condonation of a late claim, either based on the ignorance of the claimant, or for any other reason.” 
At the risk of stating the obvious, this is binding authority to this court.  
[18] The effect of Ralph and Mokoena is that they inevitably condoned the late filing of a prescribed claim in terms of section 23(3) of the Act. By so doing, they unjustifiably extended the said provisions beyond what they entail. Section 23 of the Act was intended to be fully comprehensive on the subject of prescription of claims for compensation under the Act and was intended to exhaust the subject matter. It is trite that section 23(3) in its current format has no room for condonation of a claim that is out of time whatsoever. If the legislature had intended to create room for condonation by courts in situations like Ralph, Mokoena and the present case, it would have enacted similar provisions to section 3(4)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act. This view is buttressed by the sentiments echoed in Mdeyide. It is mainly for these reasons that I find merit in the submissions by Ms Canham pertaining to the Ralph and Mokoena decisions. Consequently, I decline to follow them. 
CONCLUSION 
[19] To sum up: there is no room for condonation of a claim that has been lodged out of time in terms of section 23(3) of the Act. The Defendant neither has powers to condone same nor does it have powers to waive prescription. Even though I have the utmost sympathy for the plight of the Plaintiff, the law as it stands cannot help him on the pleaded case. It follows that the Defendant’s special plea of prescription has to succeed. 
[20] As a general rule, costs follow the successful party and I could not find a reason to order otherwise.

[21]	ORDER
1.	The Defendant’s special plea of prescription in terms of section 23(3) of the Road Accident Fund Act is upheld.
2.	Plaintiff’s claim is dismissed with costs.

                                                                                      __________________
                                                                                M.M. MATSHAYA, AJ

Appearances        :
For the Plaintiff     :   Adv H.J. Van Der Merwe
Instructed by         : Webbers Attorneys Inc
                                Bloemfontein
For the Defendant:  Ms R.D. Canham
Instructed by         : State Attorney
                                Bloemfontein