Nortje v Road Accident Fund
| Jurisdiction | South Africa |
Nortje v Road Accident Fund
2022 (4) SA 287 (KZD)
|
Citation |
|
|
Case No |
D 11635/2015 |
|
Court |
KwaZulu-Natal Local Division, Durban |
|
Judge |
Masipa J |
|
Heard |
February 4, 2022 |
|
Judgment |
February 4, 2022 |
|
Counsel |
DJ Sacks for the plaintiff. |
Flynote : Sleutelwoorde
Damages — Bodily injuries — Claim for general damages — Transmissibility — Instituted by executor of deceased estate — Situation distinguished from one where death occurring after institution of claim but before litis contestatio reached — Development of common law to allow transmission refused on grounds that (i) legislative intervention more appropriate route; and (ii) executor failed to adduce sufficient evidence in support of such development.
Headnote : Kopnota
The sole issue for decision was the transmissibility, to his estate, of one RN's general damages claim against the Road Accident Fund. RN was injured in a motor vehicle accident in November 2011, as a result of which he allegedly suffered pain, shock and discomfort, loss of amenities of life and permanent disfigurement. After RN's subsequent death, the plaintiff instituted a claim, inter alia, for general damages against the Road Accident Fund, as executor of RN's estate.
The common-law principle was that non-patrimonial claims such as those for general damages did not survive the death of the injured party. The cut-off was litis contestatio. In other words, the claim was transmissible if the action had been commenced before the death of the injured party and had reached the stage of litis contestatio (see [7] – [11).
Counsel for the plaintiff argued, however, that South African law had shifted from this approach as a result of the judgment in Nkala and Others v Harmony Gold Mining Co Ltd and Others 2016 (5) SA 240 (GJ), which held that, where the plaintiff in a claim for general damages had died after the institution of his or her claim but before litis contestatio, the common law should be developed to allow for the transmission of general damages to the deceased's estate.
The present court distinguished Nkala, pointing out that in the present case the deceased had died before the institution of the claim (see [17], [53]). It refused plaintiff's request to further develop the common law to allow transmission in such cases, on the grounds that (i) legislative intervention was the more appropriate route (see [47] – [48]); and (ii) the plaintiff had in any event not placed sufficient evidence before the court to provide sufficient factual support for the requested development of the common law (see [34] – [35]).
Cases cited
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to
Executors of Meyer v Gericke 1880 Foord 14: referred to
Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 (A): referred to
Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (C): referred to
Jankowiak and Another v Parity Insurance Co Ltd 1963 (2) SA 286 (W): referred to
2022 (4) SA p288
Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) ([1993] 2 All SA 619): referred to
Lockhat's Estate v North British & Mercantile Insurance Co Ltd 1959 (3) SA 295 (A): referred to
Mahaeeane and Another v AngloGold Ashanti Ltd 2017 (6) SA 382 (SCA): referred to
Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (5) SA 30 (CC) (2007 (2) SACR 435; 2007 (8) BCLR 827; [2007] ZACC 9): dictum in para [30] applied
MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) (2017 (12) BCLR 1528; [2017] ZACC 37): dictum in para [27] applied
Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another 2016 (1) SA 621 (CC) (2016 (1) BCLR 28; [2015] ZACC 34): referred to
Milne, NO v Shield Insurance Co Ltd 1969 (3) SA 352 (A): distinguished
MSM obo KBM v MEC for Health, Gauteng 2020 (2) SA 567 (GJ): dictum in para [42.3] applied
Naidoo NO v Minister of Safety and Security and Another [2019] ZAECPEHC 8: considered
Nkala and Others v Harmony Gold Mining Co Ltd and Others 2016 (5) SA 240 (GJ): distinguished
Pienaar and Marais v Pretoria Printing Works Ltd and Others 1906 TS 654: referred to
POPCRU v SACOSWU and Others 2019 (1) SA 73 (CC) (2018 (11) BCLR 1411; [2018] ZACC 24): referred to
RM v Mokgethi and Another 2019 (1) SACR 511 (NWM): distinguished
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) ([2005] 3 All SA 340): referred to
S v Thebus and Another 2003 (6) SA 505 (CC) (2003 (2) SACR 319; 2003 (10) BCLR 1100; [2003] ZACC 12): referred to
Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae) 2006 (4) SA 230 (CC) (2006 (6) BCLR 683; [2006] ZACC 4): referred to.
Case Information
DJ Sacks for the plaintiff.
VM Naidoo SC (with M Sibisi) for the defendant.
MM Chithi for the interested parties (the Minister of Health, the Minister of Police and the Minister of Transport).
LB Broster for the amici.
A judgment on a claim for general damages instituted by the executor of the injured party's estate after the death of the injured party. Since the relief sought raised constitutional issues that potentially affected the state, rule 16A notices were served on the Ministers of Health, Police and Transport (the interested parties).
Order
The plaintiff's claim is dismissed.
There is no order as to costs.
2022 (4) SA p289
Judgment
Masipa J:
Introduction
[1] This matter was set down for trial to run from 25 – 27 May 2020 on the issue of quantum in accordance with the order by D Pillay J dated 24 March 2017 at a case-flow management hearing. At a further rule 37 conference on 7 May 2020, the parties agreed that it was convenient to separate the issues of transmissibility of the general damages claim of the late Richard Daniel Nortje to his estate. The parties agreed that the resolution of this single issue would result in the settlement of the claim by the defendant.
[2] It was further agreed that this issue was a matter for legal argument which could be dealt with by way of written submissions. Consequently, it qualified as a matter which was capable of being dealt with as an opposed motion on the papers without the need for oral evidence. Consequent upon this the parties submitted written arguments. Upon considering the matter, it appeared that the relief sought by the plaintiff raised constitutional considerations which could affect several parties. As a result, a rule 16A notice was called for and issued with a directive that it be specifically served on three government ministries, being the Ministers of Health, Police and Transport. The ministries filed joint heads of argument. There were further written arguments submitted by the plaintiff and defendant.
Facts
[3] The plaintiff, Marissa Nortje, sues in her capacity as executor of the estate. Richard Daniel Nortje is the widower of the deceased, who passed away in November 2011. The defendant is the Road Accident Fund, a juristic person established in terms of the Road Accident Fund Act 56 of 1996, and is sued on the basis that in terms of the Act it is responsible for damages in the form of personal injuries sustained as a result of a motor vehicle accident.
[4] On 19 November 2011 a motor collision occurred between vehicles driven by the deceased and Tracy Mary-Anne Horton (Ms Horton). In the particulars of claim it is alleged that the sole cause of the collision was the negligence of Ms Horton. Further, that as a result of that collision, the deceased suffered a fracture of the left proximal femur. The deceased underwent several medical procedures at King Edward Hospital and required medical treatment in the form of orthopaedic intervention, the provision of an anal disc, and was under anti-inflammatory treatment. He was unable to work at his pre-accident vocational level and suffered loss of earnings, including future loss, and incurred medical expenses. It is also alleged that the deceased suffered pain, shock and discomfort, loss of amenities of life and permanent disfigurement. The plaintiff's claim as set out in the particulars of claim is for a payment in the sum of R807 198.
[5] In its plea the defendant denied that the collision ever occurred and pleaded that it had no knowledge of any negligence arising from
2022 (4) SA p290
Masipa J
Ms Horton and of any injuries sustained by the plaintiff. The defendant contended that the deceased was the sole cause of the collision under the same or similar circumstances of negligence as purported to have been those of Ms Horton. Alternatively, that if the court found that Ms Horton was negligent, the defendant contended that the deceased contributed to the collision and was also negligent. Accordingly, that the damages suffered by the plaintiff should be apportioned in terms of the Apportionment of Damages Act 34 of 1956.
The issue to be determined
[6] The issue to be determined is whether the deceased's claim for general damages is transmissible to his estate if the deceased dies pre-litis contestatio.
Submissions by counsel
[7] Mr Sacks for the plaintiff set out the background of Roman law preventing the transmissibility of certain claims to or against the heirs of a deceased while allowing the transmissibility of others. In general, claims in rem could be transmitted, whilst those in personam could not be transmitted. This meant that the transmissibility of claims for or against the heir of the deceased litigant was allowed...
To continue reading
Request your trial