Chetty v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Van Zyl J and Gorven J
• Judgment Date: 18 December 2008
• Citation: 2009 (5) SA 193 (N)
• Docket Number: AR 47/2008
• Hearing Date: 18 December 2008
• Counsel: L Pillay SC for the appellant. GL Mazibuko (attorney) for the respondents.
• Court: Natal Provincial Division

Gorven J:

[1] On Thursday 28 March 2002, at approximately 14:00, the appellant's attorney, Ms Ramnarain (Ramnarain), arrived at Durban Bay C House, having driven from Chatsworth. The regional office of the defendant was located on the19th floor. Her goal was to hand-deliver the claim documents (the claim) of the plaintiff, arising from a collision which had occurred on 30 March 1999. She was keenly aware that if it was not delivered by 29 March 2002, the plaintiff's right to claim D compensation would become prescribed. This was in terms of s 23 of the Road Accident Fund Act 56 of 1996 (the Act).

[2] She was also keenly aware that she could not hand-deliver the claim the following day which was Good Friday and thus a public holiday. She expected the defendant's regional office to be closed on public holidays. E What she had not reckoned with was the custom, which had apparently developed in that office, to close the office at approximately noon on days before public holidays. There was therefore no one at the defendant's office available and authorised to receive and receipt hand-delivered claims.

[3] Ramnarain was met in the foyer by a security officer who refused her F access beyond the security point. He told her that the office of the defendant was closed and that nobody was allowed beyond that point. When she pointed out her predicament, he suggested that she deposit the claim in a wooden box (the box) in the foyer, which the defendant used to receive documents. She did so and left. G

[4] The defendant repudiated liability for the claim whereupon the plaintiff issued summons. In her particulars of claim she averred that she had complied with the provisions of the Act. This prompted the defendant to enter a special plea to the effect that the claim was only H lodged on 4 April 2002 and, accordingly, the plaintiff's right to claim compensation had prescribed. The defendant pleaded over, denying, amongst other things, that the plaintiff had complied with the relevant provisions of the Act. Although the plaintiff raised an estoppel by way of a replication to the special plea, no evidence was led in support of the replication and Mr Pillay, who appeared for the plaintiff on appeal, I disavowed any reliance on the replication.

[5] The matter was heard in the magistrates' court for the district of Durban, and by agreement only the special plea was dealt with as a separate and initial issue. No specific order was made and no discussion relating to the onus of proof took place. The plaintiff assumed the duty J

Gorven J

A to begin. It is clear that, as part of the special plea, it was necessary for the plaintiff to prove that she had lodged the claim within the prescribed time limit. A court ordering a separation of issues is required to define clearly and precisely the issues to be separated (Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) ((2004) 25 ILJ 659) at 485). This was B not done in the court a quo. In the event, the question of the onus of proof did not come into play in the light of the evidence led in this matter. I will deal below with the form the order should have taken in the circumstances.

[6] The appeal turns on whether depositing the claim in the box in the C foyer of Durban Bay House amounted to delivery of the claim to the defendant on the day on which it was deposited or not. No evidence was led by the defendant to gainsay that of Ramnarain as set out above. In fact, the defendant's evidence in the person of Ms Ramroop, a claims handler, assisted the plaintiff to an extent. Her evidence confirmed the practice of closing the office early on the day before public holidays and D that this had happened on 28 March 2002. She also testified that claims deposited in the box in the foyer were treated as hand-delivered claims by the defendant and were receipted at the end of each working day as having been received on that day. The receipting did not take place at the end of 28 March 2002, even though it was a working day, because the E offices had closed early. She could not give specific evidence as to how the plaintiff's claim was treated or explain how it happened that the receipt stamp on it bore the date 4 April 2002.

[7] The defendant claimed that the plaintiff had not complied with the provisions of s 24(1)(b) of the Act and that, accordingly, the claim was F not delivered in time. Section 24(1)(b) reads as follows:

'A claim for compensation and accompanying medical report under section 17(1) shall -

. . .

(b)

be sent by registered post or delivered by hand to the Fund at its G 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...