Topolo v Road Accident Fund (EL 359/2014) [2023] ZAECELLC 33 (26 September 2023)

Topolo v Road Accident Fund (EL 359/2014) [2023] ZAECELLC 33 (26 September 2023)

The Court found that the death of the plaintiff's attorney, Mr Jekubeni, on the same day the summons was issued, created an objective impossibility that prevented the service of summons on the defendant before the expiry of the five-year prescription period. The plaintiff only became aware of the attorney's death after the prescription period had lapsed and had no means to serve the summons or prevent prescription. Applying the impossibility principle as articulated in Van Zyl N.O. v Road Accident Fund, the Court held that prescription did not run during the period of impossibility. The defendant's special plea of prescription was therefore dismissed, and the plaintiff's claim was not...

Citation
[2023] ZAECELLC 33
Parties
Plaintiff: Lindela July Topolo; Defendant: Road Accident Fund
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
26 September 2023
Case Number
EL 359/2014
Procedural Posture
Civil Trial / Special Plea Adjudication
Outcome
The defendant's special plea of prescription is dismissed.
Judges
Madyibi
Legal Topics
Prescription, Road Accident Fund Act, Impossibility, Special Plea, Service of Summons
Civil Procedure Prescription Road Accident Fund Act Impossibility Special Plea Service of Summons

Case Brief

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Parties

Lindela July Topolo

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Special Plea Adjudication

Legal Issues

  1. 1 Whether the plaintiff's claim against the Road Accident Fund has prescribed under section 23(3) of the Road Accident Fund Act.
  2. 2 Whether the death of the plaintiff's attorney constituted legal impossibility sufficient to postpone the running of prescription.

Ratio Decidendi

The Court found that the death of the plaintiff's attorney, Mr Jekubeni, on the same day the summons was issued, created an objective impossibility that prevented the service of summons on the defendant before the expiry of the five-year prescription period. The plaintiff only became aware of the attorney's death after the prescription period had lapsed and had no means to serve the summons or prevent prescription. Applying the impossibility principle as articulated in Van Zyl N.O. v Road Accident Fund, the Court held that prescription did not run during the period of impossibility. The defendant's special plea of prescription was therefore dismissed, and the plaintiff's claim was not...

Court Disposition

The defendant's special plea of prescription is dismissed.

Orders

  • The defendant's special plea of prescription is dismissed.
  • The defendant is ordered to pay the plaintiff's costs on a party and party scale.