Tshabalala v Road Accident Fund (27822/2013) [2015] ZAGPJHC 281 (21 October 2015)

Tshabalala v Road Accident Fund (27822/2013) [2015] ZAGPJHC 281 (21 October 2015)

The court held that the plaintiff's claim in the High Court was a new and separate action, and the cause of action had arisen on 20 October 2006. The applicable prescriptive period was five years, which elapsed on 19 October 2011. The plaintiff did not withdraw her pending magistrate's court action before instituting the High Court action, as required by Section 2(1)(e) of the Transitional Act. The deeming provision in Section 2(1)(a) does not relocate the commencement date for prescription purposes. The plaintiff's argument that Section 2(1)(e) is merely permissive was rejected; the provision is mandatory and requires withdrawal of the prior action. As the High Court summons was served...

Citation
[2015] ZAGPJHC 281
Parties
Plaintiff: Sibongile Johanna Tshabalala; Defendant: Road Accident Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 October 2015
Case Number
27822/2013
Procedural Posture
Civil Trial / Judgment on Special Plea of Prescription
Outcome
Defendant's special plea of prescription upheld; plaintiff's action dismissed with costs.
Judges
Chaitram
Legal Topics
Prescription, Road Accident Fund, Transitional Provisions, Constitutional Invalidity
Civil Procedure Delict Prescription Road Accident Fund Transitional Provisions Constitutional Invalidity

Case Brief

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Parties

Sibongile Johanna Tshabalala

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Judgment on Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiff's claim in the High Court has prescribed under the applicable statutory regime.
  2. 2 Whether the plaintiff was required to withdraw her pending magistrate's court action before instituting a new action in the High Court under the Road Accident Fund (Transitional Provisions) Act.
  3. 3 Interpretation of Sections 2(1)(a) and 2(1)(e) of the Road Accident Fund (Transitional Provisions) Act 15 of 2012.

Ratio Decidendi

The court held that the plaintiff's claim in the High Court was a new and separate action, and the cause of action had arisen on 20 October 2006. The applicable prescriptive period was five years, which elapsed on 19 October 2011. The plaintiff did not withdraw her pending magistrate's court action before instituting the High Court action, as required by Section 2(1)(e) of the Transitional Act. The deeming provision in Section 2(1)(a) does not relocate the commencement date for prescription purposes. The plaintiff's argument that Section 2(1)(e) is merely permissive was rejected; the provision is mandatory and requires withdrawal of the prior action. As the High Court summons was served...

Court Disposition

Defendant's special plea of prescription upheld; plaintiff's action dismissed with costs.

Orders

  • The defendant's special plea of prescription is upheld.
  • The plaintiff's action is dismissed with costs.