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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

 

Case No.: RAF 460/2019

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

 

In the matter between:

 

HOWLANDER MOHAN                                                                Plaintiff

 

and

 

ROAD ACCIDENT FUND                                                             Defendant

 

JUDGMENT

 

GURA J

 

Introduction

 

[1]     The plaintiff sued the defendant for damages consequent upon a motor vehicle accident which occurred on 17 August 2017 at approximately 09H10 on the R505 road between Ottosdal and Wolmaransstad. The plaintiff demands compensation from the defendant of general damages and loss of earnings. The notice of set-down was served on the defendant by the Sheriff on 9 December 2021 but on the dare of trial there was no appearance for the defendant. Counsel for the plaintiff informed the court that the matter had been set down for determination of the merits (liability) only.

 

[2]     Mr. Ramukhesa lead the evidence of one witness only, being the plaintiff, who testified that on the said date he was driving a motor vehicle (Nissan Tida) on the Ottosdal – Wolmaransstad road. He was following two trucks which were travelling infront of him. He then overtook the first truck and after he had gone back to the left lane i.e. after finishing to overtake it, the truck hit his vehicle from behind. He lost control of his vehicle after impact when it was “flying”.

 

[3]     He was then taken to Tshepong hospital where he was detained for three to four weeks. When he gave evidence he stated that he was still unable to walk for a long time because he fractured his two legs. That is the evidence of the plaintiff. Mr. Ramukhesa addressed court and submitted that the truck driver who had just been overtaken by the plaintiff was negligent because the collision occurred in about two minutes after the plaintiff had overtaken him.

 

[4]     In its plea the defendant raised a special plea to the plaintiff’s particulars of claim as follows.

 

“DEFENDANT’S FIRST SPECIAL PLEA

 

1.  The Plaintiff’s claim against the Defendant is governed by the provisions of the Road Accident Fund Act, Act No. 56 of 1996, as amended by Act No. 19 of 2005 and its Regulations ("the Act").

 

2.  In terms of Section 17 (1) of the Act, the Defendant’s obligation to compensate a Third Party for non-pecuniary loss is limited to compensation for a “serious injury” as contemplated in Section 17 (1A).

 

3.  The prescribed method of determining whether an injury is “serious” as contemplated in the Act is set out in Regulation 3 of the 2008 Regulations to the Act.

 

4.  In terms of Regulation 3, a Third Party who wishes to claim for non-pecuniary loss shall, inter alia, submit him / herself to an assessment by a medical practitioner in accordance with the Regulations and shall obtain from such medical practitioner concerned, a Serious Injury Assessment Report, completed in accordance with the Regulations and in which form, the findings of the medical practitioner are recorded.

 

5.  In terms of Regulation 3 (3) (c), the Defendant shall only be obliged to compensate a Third Party for non-pecuniary loss as provided in the Act if the claim of the Third Party is supported by a Serious Injury Assessment Report submitted in terms of the Act and Regulations and the Defendant is satisfied that the injury has been correctly assessed as being serious in terms of the method provided in the Regulations.

    

6.  The procedure to be followed, should the Defendant not be satisfied that the injury has correctly been assessed in a duly submitted and completed Serious Injury Assessment Report, are set out in Regulations 3 (3) (d) and 3 (4) to (14). The procedures set out in Regulations 3(3) to 3(14) will finally determine whether the injury concerned is a serious injury, including the pronouncement of the Appeal Tribunal which is required by Regulation 3(13) to be final and binding.

 

7.  The Defendant accordingly pleads that the above Honourable Court does not have jurisdiction to make a finding as to whether the Plaintiff’s injury is a serious injury and does not have the jurisdiction to make a finding regarding whether the Plaintiff is entitled to claim non-pecuniary loss against the Defendant.

 

WHEREFORE the Defendant prays that:

 

(a)   the Plaintiff’s claim for general damages be dismissed, with the Plaintiff to pay the Defendant’s costs; or

 

(b)   the Plaintiff’s claim for general damages be referred to the appropriate forum as set out in the Regulations, with the Plaintiff to pay the Defendant’s costs.

 

DEFENDANT’S SECOND SPECIAL PLEA

 

 

1.  The Plaintiff’s claim against the Defendant is governed by the provisions of the Road Accident Fund Act, Act No. 56 of 1996, as amended by Act No. 19 of 2005 and its Regulations (“the Act”).

 

2.  In terms of Section 17 (1) of the Act, the Defendants obligation to compensate a Third Party for non-pecuniary loss is limited to compensation for a “serious injury” as contemplated in Section 17 (1A).

 

3.  The prescribed method of determining whether an injury is “serious” as contemplated in the Act is set out in Regulation 3 of the 2008 Regulations to the Act.

 

4.  In terms of Regulation 3, a Third Party who wishes to claim for non-pecuniary loss shall, inter alia, submit him / herself to an assessment by a medical practitioner in accordance with the Regulations and shall obtain from such medical practitioner concerned, a Serious Injury Assessment Report, completed in accordance with the Regulations and in which form, the findings of the medical practitioner are recorded.

 

5.  In terms of Regulation 3 (3) (c), the Defendant shall only be obliged to compensate a Third Party for non-pecuniary loss as provided in the Act if the claim of the Third Party is supported by a Serious Injury Assessment Report submitted in terms of the Act and Regulations and the Defendant is satisfied that the injury has been correctly assessed as being serious in terms of the method provided in the Regulations.

 

6.  The procedure to be followed, should the Defendant not be satisfied that the injury has correctly been assessed in a duly submitted and completed Serious Injury Assessment Report, are set out in Regulations 3 (3) (d) and 3 (4) to (14).

 

7.  As at date hereof, the Plaintiff has submitted a Serious Injury Report, but the Defendant has not yet made a decision in terms of Regulations 3(3)(c) and (d) regarding whether the injury has correctly been assessed as serious. Accordingly, the Defendant is not obliged to compensate the Plaintiff for non-pecuniary loss as alleged or at all.

 

8.  As at the date hereof, the Plaintiff has submitted a Serious Injury Report, but the Defendant has directed that the plaintiff undergo a further assessment to determine whether the injury is serious, in terms of Regulation 3(3)(d)(Ii). The Plaintiff’s alleged injury has not been finally determined to be a serious injury in terms of Regulations 3(4) to 3(14). Accordingly, the Defendant is not obliged to compensate the Plaintiff for non-pecuniary loss as alleged or at all.

 

WHEREFORE the Defendant prays that:  

 

(a)  the Plaintiff's claim far general damages be dismissed, with the Plaintiff to pay the Defendant’s costs; or

 

(b)  the Plaintiff’s claim for general damages be referred to the appropriate forum as set out in the Regulations, with the plaintiff to pay the Defendant’s costs.”

 

[5]     The Plaintiff did nothing to address the defendant’s concern as raised in the special plea but he just set the matter down for trial. Even in his evidence before this court nothing was said by the plaintiff in an attempt to address the special plea. In the absence of a report referred to in the special plea, I am afraid that this court has no jurisdiction to hear the matter. In fact the matter has been brought before court prematurely.

 

Order

 

[6]        Consequently, the plaintiff’s action is dismissed with costs.

 

SAMKELO GURA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

DATE OF HEARING:	02 AUGUST 2022
DATE OF JUDGMENT:	13 JULY 2023
COUNSEL FOR THE PLAINITFF:	Adv. H Ramukhesa
COUNSEL FOR THE DEFENDANT:	No Appearance

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