THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 206/2017

In the matter between:

NTUNTU DAVID KEKANA

APPELLANT

and

ROAD ACCIDENT FUND

RESPONDENT

Neutral citation: Kekana v Road Accident Fund (206/17) [2018] ZASCA 75
(31 May 2018)

Coram:
Shongwe ADP, Leach and Mbha JJA and Pillay and Mothle AJJA

Heard:
15 May 2018

Delivered: 31 May 2018

Summary: Interpretation – s 12(3) of the Prescription Act 68 of 1969 –
whether knowledge of a duty of care constitutes a factual or legal conclusion –
whether acceptance of offer by a claimant with hindsight and new information
constitute facts from which the debt arose – appeal dismissed.

ORDER
________________________________________________________________

On appeal from:  Gauteng Division, Pretoria (Janse van Nieuwenhuizen J
sitting as court of first instance):
The appeal is dismissed with costs.

JUDGMENT
________________________________________________________________

Shongwe ADP (Leach and Mbha JJA and Pillay and Mothle AJJA
concurring)

[1] This appeal, with leave of the court a quo, is against the judgment and
order upholding a special plea of prescription. The crisp question before the
court a quo was thus whether the appellant had actual or deemed knowledge of
the facts from which the debt arose. In essence it concerns the proper
construction of s 12(3) of the Prescription Act 68 of 1969 (the Act).

[2] The background facts are that on 8 August 1996, the appellant, a 57 year
old male detective employed with the South African Police Services, was
involved in a motor vehicle accident in which he sustained bodily injuries. He
subsequently lodged a direct claim for damages against the respondent, the
Road Accident Fund (the Fund), a juristic person incorporated in terms of the
Road Accident Fund Act 56 of 1996 (the RAF Act). The Fund proposed a
settlement figure of R48 853.31, which the appellant rejected. On 2 August
1999 the Fund made an improved offer in the sum of R63 088.45 in full and
final settlement. The appellant was still unhappy, as he could not understand

why the offer was below his medical costs. The Fund explained to the appellant
that in 1998 he had injured his loin in an unrelated incident; that the offer was
fair and reasonable in the circumstances; that if he appointed an attorney to
assist him such costs would be for his own account; and that his claim was
nearing prescription. In order to avoid further costs, the appellant accepted the
offer.

[3] In 2013 the appellant read a newspaper report on how a certain person,
who had been under-compensated by the Fund, but who after consulting an
attorney was able to ‘resuscitate’ his claim under similar circumstances. The
appellant consulted with an attorney who advised him that he had been under-
compensated. Hence the summons was issued in 2013. The cause of action was
that the Fund had failed to act in the best interests of the appellant in that it
ignored a report of a neurosurgeon specialist who examined him and found that
he had a permanent disability; that the Fund failed to discharge its duties by
advising him properly as a direct claimant; and that the Fund failed to act in
accordance with its policy to treat the direct claim fairly and compensate the
appellant accordingly.

[4] The Fund raised, in limine, a special plea of prescription, arguing that the
appellant’s claim had prescribed, more than three years having expired after it
had arisen , in terms of s 11 of the Act. The motor vehicle accident occurred in
1996 and the settlement was concluded in 1999. However, the summons was
issued and served in 2013. The court a quo upheld the special plea and
consequently dismissed the appellant’s claim.

[5] The appellant contended that prescription only started to run when he
read the newspaper report in 2013. Until then he lacked the required knowledge
of the necessary facts as contemplated in s 12(3) of the Act.

[6] On the other hand the respondent contended that the period of
prescription in this case is three years (s 11(d) of the Act). Thus, it
acknowledged that it bore the onus to show when the debt became due. (See
Macleod v Kweyiya [2013] ZASCA 28; 2013 (6) SA 1 (SCA) para 10.) The
respondent further contended that the appellant knew the identity of the
respondent as debtor and knew that the respondent was obligated to compensate
him. Despite believing that the offer was inadequate, the appellant accepted it,
which in the respondent’s view that was the end of the matter.

[7] It is trite that prescription commences to run as soon as the debt becomes
due. In this light, it is instructive to examine the provisions of s 12 and more
particularly s 12(3) of the Act. It provides that:
‘12. When prescription begins to run.
(1)  Subject to the provisions of subsections (2), (3), and (4), prescription shall commence to
run as soon as the debt is due.
(2) If the debtor wilfully prevents the creditor from coming to know of the existence of the
debt, prescription shall not commence to run until the creditor becomes aware of the
existence of the debt.
(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of
the debtor and of the facts from which the debt arises: Provided that a creditor shall be
deemed to have such knowledge if he could have acquired it by exercising reasonable care.’

[8] The facts of this case are clear. The accident occurred on 8 August 1996.
The appellant filed his claim on time and he accepted the offer of settlement in

1999, albeit under protest. He knew that he would be responsible for the legal
fees incurred. However the appellant did nothing until approximately 14 years
later when he acquired information that he could revive his claim. The
information he acquired in 2013 had no relation to the facts from which the debt
arose. It had to do with a legal conclusion that the respondent could be liable on
the basis of a duty of care. Summons was served on 18 October 2013 which was
well over the three year period prescribed in s 11(d) of the Act. Counsel for the
appellant readily conceded that no valid cause of action was pleaded. The
appellant alleged in the particulars of claim that the cause of action was
premised on the duty of care, which is in fact and in law not a cause of action.
Clearly the appellant appreciated and believed from as early as 1999, that a
wrong had been committed against him by the respondent. Between 1999 and
2013 there were no new facts that emerged which the appellant could present to
the respondent. The newspaper reports the appellant read in 2013 was merely an
opinion in the form of a conclusion that there had been negligence, which
opinion was based on the same facts which had been available from 1996 and or
1999.

[9] In Truter & another v Deysel 2006 (4) SA 168 (SCA) paras 16 and 17 the
court observed that: ‘A debt is due in this sense when the creditor acquires a
complete cause of action for the recovery of the debt, that is, when the entire set
of facts which the creditor must prove in order to succeed with his or her claim
against the debtor is in place or, in other words, when everything has happened
which would entitle the creditor to institute action and to pursue his or her
claim. In a delictual claim, the requirements of fault and unlawfulness do not
constitute factual ingredients of the cause of action, but are legal conclusions to
be drawn from the facts’.

(See also Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838D-H; M
M Loubser Extinctive Prescription (1996) para 4.6.2 at 80 – 81.) In delictual
actions the presence or absence of negligence is not a fact. It is a conclusion of
law to be drawn by the trier of facts in all the circumstances of the particular
case. (See Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) paras19
and 23.)

[10] Section 12(3) of the Act contains a deeming provision that the creditor is
deemed to have such knowledge if he could have acquired it by exercising
reasonable care. The appellant was a police officer who ought to have known
that he could approach an attorney for legal advice at any time, one may even
go further to say that he was aware that he could get the necessary help but did
not want to pay legal fees.

[11] In conclusion, if the appellant failed to appreciate the legal consequences
which flowed from the facts, his failure to do so did not delay the running of
prescription. (See Claasen v Bester [2011] ZASCA 197; 2012 (2) SA 404
(SCA) para 15; ATB Chartered Accountants (SA) v Bonfiglio [2010] ZASCA
124; [2011] 2 All SA 132 (SCA) paras 14 and 18.) I am unable to find fault with
the order and judgment of the court a quo.

[12] In the result the appeal is dismissed with costs.

_______________________

J B Z Shongwe
Acting
Deputy
President
Supreme Court of Appeal

Appearances

For the Appellant:

D J Joubert SC (with him M Kgomongwe)

Instructed by:

T L Kekana Attorneys, Pretoria;
Phatshoane Henney Attorneys, Bloemfontein

For the Respondent:

J Myburgh

Instructed by:
Mothle Jooma Sabdia Incorporated, Pretoria;

Maduba Attorneys, Bloemfontein