South Africa: South Gauteng High Court, Johannesburg

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

JOHANNESBURG

CASE NO:  38331/2016

DATE:  2018-07-23

In the matter between

M.C. RATHELELE ATTORNEYS                                                                           Applicant

and

MAPULA LILLIAN LETSIE                                                                               Respondent

J U D G M E N T

VAN DER LINDE, J:  This is an application for leave to appeal by MC Rathelele Incorporated Attorneys against a judgment which I gave last year on 17 November 2017 against the applicant in which I declared the applicant liable to the plaintiff Ms Letsie for any damages that she may prove to have suffered as a result of injuries that she sustained in a collision that occurred on 23 January 2011. 

Consequent upon that declaration I directed the applicant also to pay the costs of the plaintiff and of the 1^st and 2^nd defendants.

The 1^st and 2^nd defendants were also attorneys but in the judgment I held that no case had been established against them for any negligence.  The case by the plaintiff against today's applicant, then the 3^rd defendant, was that the 3^rd defendant had negligently allowed a claim which the plaintiff had acquired against the Road Accident Fund pursuant to injuries sustained in a collision to become extinguished through prescription.

It is unnecessary to rehash the detail of the evidence that was given nor of the reasoning that led me to the conclusion that the applicant was declared liable.

In essence I held that the plaintiff had established a prima facie case of negligence against the applicant amongst other things by virtue of the fact that she had timeously instructed the applicant to pursue her claim.

The applicant did not present viva voce evidence but rested with the documentary evidence that was placed before me by agreement between the parties. 

The crucial documents that formed ultimately the basis of my judgment are a registered slip which is dated 15 January 2014 and a letter by the applicant addressed to the chief executive officer of the Road Accident Fund dated 7 January 2014 in terms of which the plaintiff's claim against the Road Accident Fund was being submitted.

The collision that gave rise to the plaintiff's potential cause of action had occurred on 23 January 2011 and the letter submitting the claim was dated 7 January 2014.  Crucially for purposes of the provisions of sections 23 and 24 of the Road Accident Fund Act 56 of 1996 is the question whether or not that claim submission, dated 7 January 2014, was lodged with the Road Accident Fund on or before 22 January 2014, having regard to the provisions of the Act to which I referred.

In particular in terms of section 24(1)(b) of the Act a claim for compensation must be set out in the prescribed form completed in all its particulars and "be sent by registered post" to the Fund at its principal branch or regional office or to the agent who in terms of section 8 must handle the claim at the agent's registered office or local branch office, and the Fund or such agent shall at the time of delivery by hand acknowledge receipt thereof and the date of such receipt in writing.

The argument for the applicant at the trial and again before me today in the application for leave to appeal was that the registered slip of 15 January 2014 proved that the claim submission of 7 January 2014 was made in time.

I found that there was no evidence to sustain that conclusion.  Counsel for the applicant submitted in a persuasive manner that I erred and that another court may reasonably come to a conclusion different to the one to which I came, because I did not pay sufficient attention to the discrepancies in the documents that emanated from the Road Accident Fund.

In particular my attention was drawn to the fact that the handwritten inscription on the letter of 7 January 2014 speaks of the claim having been extinguished by a prescription because the accident had occurred in 2010 whereas palpably this was wrong because the accident had occurred on 23 January 2011.

It was submitted that there is a difference in the registration, or I should say the reference numbers on the letter of 7 January 2014 and the letter by the Fund rejecting the claim dated 19 May 2014, in that the last four letters of the RAF reference are not the same.

It was submitted thirdly that the letter itself of 19 May 2014 writes that the claim had become prescribed on 22 May 2013 whereas this was impossible given that the collision causing the injuries had occurred on 23 January 2011 and therefore the claim would have prescribed on 22 January 2014.

It was submitted that the registration report which followed on the letter of 19 May 2014 in the bundle of documents again contained an error concerning the date of the accident because it referred to 23 January 2010 whereas in fact it was 23 January 2011.

The submissions concluded by pointing to the fact that the applicant had no onus itself to discharge. It was the plaintiff that had the onus and reliance was placed in this regard on the judgment in the Supreme Court of Appeal in the matter of Steyn v Bobroff which is reported in 2013 (2) SA page 311.

I accept that there were discrepancies, in fact substantial discrepancies, in the manner in which the RAF dealt with the receipt of the claim, but in my judgment I dealt with that aspect, and in fact relied not on the discrepancies but on the failure of the applicant to have dismissed these discrepancies out of hand if the applicant was persuaded that indeed the rejection of the claim had no merit; and simply to have called in the plaintiff and to have advised her that the RAF had rejected the claim without any foundation.

And so it seems to me that the submissions on behalf of the applicant for leave to appeal, cogent as they are with respect, do not really address the substance of my finding which is that there was a complete absence of evidence that the particular letter dated 7 January 2014 was actually handed over to the postal authorities before or on 22 January 2014.

The fact that the applicant for leave to appeal did not put up any viva voce evidence seems to me therefore to be a cogent argument which was raised by the plaintiff against the application for leave to appeal.

The two counsel for the three respondents in the matter before me argued that there should be no appeal and a special costs order, but there is no substance at all in that submission.  In the result the application for leave to appeal is dismissed with costs.

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