Mahlangu NO. v Road Accident Fund
| Jurisdiction | South Africa |
| Judge | NM Mavundla J |
| Judgment Date | 15 January 2020 |
| Docket Number | 67880/14 |
| Court | Gauteng High Court, Pretoria |
| Hearing Date | 05 January 2020 |
| Citation | 2020 JDR 0148 (GP) |
Mavundla J:
The plaintiff is Mr Michael Mahlangu, an adult male residing at 370 Kotze Street Garsfontein, Pretoria, Gauteng, sued the defendant for damages he allegedly suffered on 20 July 2013 at Atterbury Road, Menlyn, Pretoria, Gauteng when a motor vehicle with registration letters and numbers BXXXX then and there driven by Mr G A Mabitsela (hereinafter referred to as the insured driver) collided with the plaintiff who was standing next to the pavement behind the yellow lane at the time of the accident.
The defendant in its plea raised three special pleas, but during a pre-trial minute held on 18 September 2019, indicated that it would only rely on its first special plea; which is:
Defendant's first special plea
In paragraph 4 of the plaintiff's particulars of claim it is alleged that the collision occurred on 20 July 2013. The Road Accident Fund Act, Act 56 of 1996, and regulations thereto were amended, which amendments commenced on 10 August 2008;
In accordance with Regulations 3(1)(a) and (b) of the Road Accident Fund Amendment Act, Act No 19 of 2005, in that a third party who wishes to claim compensation for non-pecuniary loss shall submit himself to an assessment by a medical practitioner in accordance with the regulations;
The plaintiff failed and or refused to submit himself to the statutory prescribed assessment procedure and methods stipulated in Regulations 3(1)(a) of the Road Accident Fund Amendment Act, Act No 19 of 2005;
The defendant pleads exclusion of liability in terms of Section 17 of the Road Accident Fund Amendment Act, Act 19 of 2005, read together with Regulation 3, the plaintiff has failed or neglected to prove per statutorily prescribed method of assessment of serious injuries, that he has sustained a serious injury as defined by the Amendment Act read together with Regulation 3;
In the premises the plaintiff has failed and or neglected to comply with the provisions enacted under the said regulation and therefore the claim is accordingly not enforceable in the present proceedings.
On the 4 December 2019, the parties agreed that the matter should be proceeded with only on the aforesaid special plea and that the rest of the issues be and indeed were separated in terms of rule 33.4 of the Uniform Court Rules and postponed sine die.
2020 JDR 0148 p3
Mavundla J
It is common cause that summons was issued on 15 September 2014 and the defendant's plea and special plea were filed on 17 October 2014. Litis contestation occurred on 7 November 2014; vide Uniform Rule 25(1) read in conjunction with Uniform Rule 29(b); In Milne, NO v Shield Insurance Co. Ltd 1969 (3) SA 352 (AD) at 358C Holmes JA stated that: "It has rightly been held that, in our modern procedure, litis contestatio or joinder of issues takes place when the pleadings are closed; vide also Government of RSA v Ngubane 1972 (2) SA 601 (AD) at Holmes JA held at 608D-E that 'In modern practice litis is taken as being synonymous with close of pleadings, when the issue is crystallised and joined."; Potgieter v Sustein (Edms) Bpk 1990 2 15 (T) at 18H-19H.
It is trite that a claim for general damages does not pass to the estate of a deceased person unless litis contestatio has taken place; vide in this regard Jankowiak v Parity Insurance Co Ltd 1963 (2) SA 286 (w); Potgieter v Rondalia Assurance Corporation of SA Ltd 1970 (1) SA 705 (N) at 710-D; Vide also the authorities cited in the preceding paragraph.
The Regulations in terms of Road Accident Fund Act 56 of 1996 however, added some more requirements before any estate of a claimant would be able to claim general damages for pain and suffering and those requirements one finds under regulation 3.
In casu Mr Michael Mahlangu passed away on 8 April 2015 which was 5 months after litis contestatio and almost two years after the alleged accident according to the letter of authority of the Master of the High Court issued on 29 March 2017. It is common cause that the deceased never submitted himself to a medical practitioner in accordance with regulations to the Road Accident Fund Act 19 of 2005 (as amended).
In an attempt to comply with the Act and the Regulations, the hospital records which defined the injuries sustained by the plaintiff were provided to Dr N Mogoru (an independent medical assessor) who accordingly prepared the statutorily required RAF 4 Form. Dr. Mogoru having considered the injuries of the plaintiff, concluded that, had the plaintiff been alive his injuries would have qualified as 'serious' by virtue of the fact that he would either have had a 30% whole person impairment or would have qualified under the narrative test.
It is not in dispute that according to the hospital records, the plaintiff sustained the following accident- related injuries:
Polytrauma;
2020 JDR 0148 p4
Mavundla J
head injury with cerebral oedema (brain swelling) identified by a CT Scan; (GCS of 2/15 on admission to the hospital;
open left femur fracture; and
Closed left femur fracture; and
C2 injury (and neck vertebra fracture)
Per the hospital records the plaintiff received the following treatment for the aforesaid accident related injuries:
a debridement of the left femur (24 July 2013);
external fixation of the right tibia (24 July 2013);
a debridement and open reduction with an internal fixation of the right tibia (24 July 2013)
open reduction and internal fixation of the right tibia (28 September 2013) and
a protracted stay in hospital for operations and recovery.
It was submitted on behalf of the plaintiff that:
the purpose of RAF 4 assessment is to determine the seriousness of the injury as the defendant is only liable to compensate a plaintiff if the injury is serious;
the defendant's special plea targets plaintiff's purported non-compliance with Regulation 3: the defendant's protestation can be distilled to read that there is no valid assessment of the 'seriousness' of the plaintiff's accident-related injuries;
the applicable authority to the special plea is the case of Road Accident Fund v Duma (2002/12) and three related cases (Health Professions Council of South Africa as Amicus Curiae [2012] ZASCA 169 (27 November 2012) dealt with the Road Accident Fund Act 56 of 1996 read with the Regulations promulgated under the Act with regards to 'serious injury' to be determined in accordance with the procedure prescribed in the Regulations;
the proverbial bone of contention raised in the respective cases adjudicated simultaneously before the SCA is that the plaintiff's 'serious' injury, had not been determined by the method prescribed by the Regulations promulgated under the Act and that the High Court should not have awarded general damages;
2020 JDR 0148 p5
Mavundla J
the SCA held that neither s17(1) nor s17(1A) provides any objective determinable content or substance to the central concept of what injury would qualify as 'serious'. All s17 (1A) adds is that the assessments of whether or not a particular injury meets the threshold requirements 'serious' must be carried out by someone registered as a medical practitioner under the Health Professions Act 56 of 1974 and on the basis of a prescribed method;
Regulation 3 prescribes the method contemplated in s17(1A) for the determination of 'serious injury'. As a starting point it provides in 3 (1) (a) that a third party who wishes to claim general damages 'shall submit himself or herself to an assessment by a medical practitioner in accordance with these Regulations.' In terms of 3(3)(a) a third party who has been so assessed, 'shall obtain from the medical practitioner concerned a serious injury assessment report.' This report is defined in regulation 1 as a duly completed RAF4.
The RAF4 form itself, read with Regulation 3(1)(b), requires the medical practitioner to assess whether the third party's injury is 'serious' in accordance with 3 sets of criteria.
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