Nortje v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Masipa J
• Judgment Date: 04 February 2022
• Court: KwaZulu-Natal Local Division, Durban
• Hearing Date: 04 February 2022
• Citation: 2022 (4) SA 287 (KZD)
• Counsel: 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.
• Docket Number: D 11635/2015

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

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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 after litis contestatio, and such transmissibility was not affected by the nature of the claim.

[8] In the matter of Executors of Meyer v Gericke 1880 Foord 14 at 16, the court observed as follows:

'It is further admitted that such an action, even if instituted during the lifetime of both parties, cannot be continued after the death of either party unless the stage known as the litis contestatio has been reached.'

[9] In Pienaar and Marais v Pretoria Printing Works Ltd and Others 1906 TS 654 the court held:

'(A) personal action for libel cannot be ceded. It perishes on the death of the person libelled, and it does not even pass to his heirs unless the action had been commenced before his death and had reached the stage of litis contestatio. That was so decided in Executors of Meyer v Gericke . . . in accordance with the weight of Roman-Dutch authority.'

All subsequent cases had followed this approach.

[10] Mr Sacks argued, however, that South African law has since shifted from this approach as a result of the judgment of Nkala and Others v Harmony Gold Mining Co Ltd and Others 2016 (5) SA 240 (GJ). In Nkala the court took the opportunity to reconsider the issue and noted in para 185 that the claim for non-patrimonial damages, also referred to as general damages, is a claim for personal injury sustained in the form of pain and suffering, loss of amenities of life and for disfigurement. The court went further to state in para 186 that the claim, however, does not fall within the scope of the lex Aquilia but is brought simultaneously with the Aquilian action because the facts relied upon to establish it are the same as those relied upon for the patrimonial loss claim in terms of the lex Aquilia. Although there is no scientifically calculable economic or monetary value, Roman-Dutch authorities have placed a monetary value

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in the form of a solatium to the plaintiff, such as compensation or reparation for the wrong suffered.

[11] It is trite that an executor can sue for any patrimonial loss suffered by the deceased before his death, as well as the funeral expenses. The dependants of the deceased can also sue for any patrimonial loss they suffer as a result of the premature death of their financial provider: see Lockhat's Estate v North British & Mercantile Insurance Co Ltd 1959 (3) SA 295 (A) at 304B – C. However, neither could sue for any personal injury such as pain and suffering, loss of amenities of life or disfigurement. An exception to that rule is that a claim could be transmitted where the deceased had commenced action and the claim had reached the stage of litis contestatio before his death. See para 188 of Nkala.

[12] According to Mr Sacks the court in Nkala reconsidered the legal position in light of modern-day practice, and developed the common law to suit the times as entrenched in s 8(3) read with s 39(2) of the Constitution. Section 39(2) of the Constitution enjoins the court to develop the common law to the extent necessary to make it consistent with its enshrined values.

[13] He argued further that the right of litigants to bodily integrity is vindicated by compensation in the form of general damages by the wrongdoer. The benefit acquired therefrom is shared by their dependants. To deny the opportunity to transmit such right to their estate removed that right. Accordingly, he submitted that as set out in Nkala para 200, the common law needed to be developed to the extent that it was incompatible with the Constitution.

[14] A distinction was made between Nkala and 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). In Nkala para 202 the majority of the court noted that in Van der Merwe there was no comment made on the constitutional compliance of the common-law rule precluding the transmissibility of general damages pre-litis contestatio. Mr Sacks submitted that what Van der Merwe did was to describe non-patrimonial loss.

[15] In Nkala the court concluded that an injustice would eventuate if general damages that would have been due to the deceased are not transferred simply because he succumbed before the case he brings or intended to bring reached the stage of litis contestatio. The court observed in para 213 that loss of general damages will be borne by the widow and dependants of the deceased, as they would have benefited had the primary provider not died pre-litis contestatio.

[16] In para 220 of Nkala the court developed the common law as follows:

'1.

A plaintiff who had commenced suing for general damages, but who has died, whether arising from harm caused by a wrongful act or omission of a person or otherwise, and whose claim has yet to reach the stage of litis contestatio, and who would but for his/her death be entitled to maintain the action and recover the general

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damages in respect thereof, will be entitled to continue with such action, notwithstanding his/her death; and

2.

the person who would have been liable for the general damages if the death of the plaintiff had not ensued remains liable for the said general damages, notwithstanding the death of the plaintiff so harmed.

3.

Such action shall be for the benefit of the estate of the person whose death had been so caused.

4.

A defendant who dies while an action against him has commenced for general damages arising from harm caused by his wrongful act or omission, and whose case has yet to reach the stage of litis contestation, remains liable for the said general damages, notwithstanding his death, and the estate of the defendant shall continue to bear...