Eksteen v Road Accident Fund (4972/2016) [2019] ZAFSHC 46 (2 May 2019)

Eksteen v Road Accident Fund (4972/2016) [2019] ZAFSHC 46 (2 May 2019)

Section 2(1)(e)(ii) of the Road Accident Fund (Transitional Provisions) Act does not permit a plaintiff to litigate simultaneously in both the Magistrate's Court and the High Court on the same cause of action. The section is permissive only in allowing the plaintiff to elect the forum, but requires withdrawal of the Magistrate's Court action before instituting proceedings in the High Court. The plaintiff failed to withdraw the Magistrate's Court action before issuing summons in the High Court, and thus did not comply with the statutory conditions for protection against prescription. Both special pleas of prescription and lis alibi pendens were upheld, as the claim in the High Court was...

Citation
[2019] ZAFSHC 46
Parties
Plaintiff: Johann Sebastiaan Eksteen; Defendant: Road Accident Fund
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
2 May 2019
Case Number
4972/2016
Procedural Posture
Civil Judgment / Full Court Hearing on Stated Case; Adjudication of Special Pleas
Outcome
Defendant's special pleas of lis alibi pendens and prescription are upheld; action dismissed with costs.
Judges
Musi, Loubser, Murray
Legal Topics
Road Accident Fund Act, Prescription, Lis Alibi Pendens, Transitional Provisions, Statutory Interpretation
Civil Procedure Land and Property Road Accident Fund Act Prescription Lis Alibi Pendens Transitional Provisions Statutory Interpretation

Case Brief

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Parties

Johann Sebastiaan Eksteen

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Judgment / Full Court Hearing on Stated Case; Adjudication of Special Pleas

Legal Issues

  1. 1 Whether section 2(1)(e)(ii) of the Road Accident Fund (Transitional Provisions) Act permits a plaintiff to litigate simultaneously in the Magistrate's Court and High Court based on the same cause of action.
  2. 2 Whether the plaintiff's claim in the High Court has prescribed under the Road Accident Fund Act and Transitional Provisions Act.
  3. 3 Whether the defence of lis alibi pendens applies when actions are pending in both Magistrate's Court and High Court for the same cause.

Ratio Decidendi

Section 2(1)(e)(ii) of the Road Accident Fund (Transitional Provisions) Act does not permit a plaintiff to litigate simultaneously in both the Magistrate's Court and the High Court on the same cause of action. The section is permissive only in allowing the plaintiff to elect the forum, but requires withdrawal of the Magistrate's Court action before instituting proceedings in the High Court. The plaintiff failed to withdraw the Magistrate's Court action before issuing summons in the High Court, and thus did not comply with the statutory conditions for protection against prescription. Both special pleas of prescription and lis alibi pendens were upheld, as the claim in the High Court was...

Court Disposition

Defendant's special pleas of lis alibi pendens and prescription are upheld; action dismissed with costs.

Orders

  • The defendant's special pleas of lis alibi pendens and prescription are upheld.
  • The action is dismissed with costs.