Eksteen v Road Accident Fund (873/2019) [2021] ZASCA 48; [2021] 3 All SA 46 (SCA); 2021 (8) BCLR 844 (SCA) (21 April 2021)

Eksteen v Road Accident Fund (873/2019) [2021] ZASCA 48; [2021] 3 All SA 46 (SCA); 2021 (8) BCLR 844 (SCA) (21 April 2021)

The Supreme Court of Appeal held that section 2(1)(e)(ii) of the Road Accident Fund (Transitional Provisions) Act 15 of 2012 requires a claimant who has instituted an action in a magistrate’s court to first withdraw that action before instituting proceedings in the high court. The 60-day period within which to institute the high court action is triggered only upon withdrawal of the magistrate’s court action. The court found that the appellant failed to withdraw the magistrate’s court action before instituting the high court action, resulting in the special plea of lis alibi pendens being properly upheld. Regarding prescription, the court determined that the agreed statement of facts was...

Citation
[2021] ZASCA 48
Parties
Appellant: Johan Sebastiaan Eksteen; Respondent: Road Accident Fund
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 April 2021
Case Number
873/2019
Procedural Posture
Civil Appeal / Appeal From the Free State Division of the High Court, Bloemfontein
Outcome
Appeal upheld in part; matter referred back to the high court for trial before a differently constituted court.
Judges
Petse, Makgoka, Dlodlo, Ledwaba, Poyo-Dlwati
Legal Topics
Road Accident Fund Act, Prescription, Lis Alibi Pendens, Statutory Interpretation, Transitional Provisions, Serious Injury Assessment
Civil Procedure Delict Road Accident Fund Act Prescription Lis Alibi Pendens Statutory Interpretation Transitional Provisions Serious Injury Assessment

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Parties

Johan Sebastiaan Eksteen

Appellant

Road Accident Fund

Respondent

Procedural Posture

Civil Appeal / Appeal From the Free State Division of the High Court, Bloemfontein

Legal Issues

  1. 1 Whether section 2(1)(e)(ii) of the Road Accident Fund (Transitional Provisions) Act 15 of 2012 obliges a plaintiff to first withdraw an action instituted in a magistrate’s court before issuing summons in the high court.
  2. 2 Whether prescription commences to run even if the action instituted in a magistrate’s court has not been withdrawn.
  3. 3 Whether the special pleas of lis alibi pendens and prescription were properly upheld.

Ratio Decidendi

The Supreme Court of Appeal held that section 2(1)(e)(ii) of the Road Accident Fund (Transitional Provisions) Act 15 of 2012 requires a claimant who has instituted an action in a magistrate’s court to first withdraw that action before instituting proceedings in the high court. The 60-day period within which to institute the high court action is triggered only upon withdrawal of the magistrate’s court action. The court found that the appellant failed to withdraw the magistrate’s court action before instituting the high court action, resulting in the special plea of lis alibi pendens being properly upheld. Regarding prescription, the court determined that the agreed statement of facts was...

Court Disposition

Appeal upheld in part; matter referred back to the high court for trial before a differently constituted court.

Orders

  • The appeal is upheld in part with costs.
  • The action is referred back to the high court for trial in accordance with the principles set out in this judgment before a differently constituted court.