- Posted by Stanley Makula
- On January 22, 2015
- 0 Comments
A right of action to recover damages arises from variety of causes including delict or statute. We have been witnessing serious accidents on our national roads on a daily basis. The legislature has created an Act to protect victims of the roads accidents. Our courts have been swamped with claims of third party compensation and this goes to show that accidents occur daily in South Africa.
The Road Accident Act 56 of 1996 (herein Act) has been created for the exclusive benefit and protection of victims of the accident and not for the benefit of or protection of the negligent or unlawful acting driver or owner of the vehicle.
In terms of section 17 of RAF the fund or agents shall be liable subject to the Act, in case of a claim for compensation under this Act arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established or in certain instances with hit-and–run. Any person who gets injured in a motor vehicle accident can lodge a claim for compensation in terms of this section.
The central question in this article is when a matter prescribes in terms of RAF. RAF makes it clear that the matter will prescribe if a claim is not lodged after three years from the date of the accident. Section 23(1) provides as follows; “Notwithstanding anything to the contrary 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 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.”
This section does not entail that the victim must lodge his or her claim immediately after the accident, as the victim might be at a state of mind where he is not able to recall the accident. The three years period offers the victim of the road accident to recover well and be able to lodge the claim when in good health.
However there is exception to section 23(1) by section 23(2) and (3) which provides that the prescription in terms of section 23(1) shall not run against minors; any person detained as a patient in terms of any mental health legislation, or a person under curatorship and a claim lodged in terms of section 17 (4) (a) or 24 shall prescribe before the expiry of a period of five years from date on which cause of action arose.
In the matter of Duduzile v Road Accident Fund (2007) 4 ALL SA 1241 (W) Duduzile having been injured in a motor vehicle collision sued the Defendant for damages. The claim was lodged within the three years period of prescription and her particulars of claim focused on claims for past medical expenses, future medical expenses and general damages. However she then filed a notice of intention to amend her particulars of claim to include claims for past loss of earnings and future loss of earnings.
This led to the Defendant filing a special plea to the effect that the Duduzile’s past and future loss of earnings had prescribed in terms of section 24 of the RAF Act 56 of 1996 as the three years had expired the time she filed her notice of amendment.
The court held that any interpretation of the provisions of the Act must be done extensively as possible in favour of the third party in order to afford her or him protection. It held that the Act exists exclusively for the benefit of the victim.
The court held that the Plaintiff’s original summons interrupted prescription for the entire claim of the Plaintiff. The notice of amendment did not introduce a new claim for compensation and accordingly the special plea to prescription was found to be bad in law and it was dismissed.
In the court’s opinion which I concur with the Plaintiff’s right to recover past and future loss of earning formed part of her original cause of action to claim of compensation.
It is evident from this matter that any interpretation of section 23 of RAF will be done so with regard to the object of RAF and for the benefit and protection of the victim/ third party.
It is imperative that a road accident victim lodge a claim as soon as possible to avoid the implication experienced in the Duduzile case. It is even highly important that victims use the service of experienced Attorneys to lodge claim and alternatively prepare particular of claims to avoid having to file notice to amend the particular of claims.
It is important as Attorneys not to allow clients’ claim to prescribe as it might affect his claim dismally and end up with no claim at all.