THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case no: 105/2007

In the matter between:

BULELWA NONKWALI                                                             Appellant

and

ROAD ACCIDENT FUND                                                        Respondent

CORAM:                 STREICHER, VAN HEERDEN et MAYA JJA
HEARD:                   21 FEBRUARY 2008
DELIVERED:          6 MARCH 2008

Summary:        Claim in terms of s 17 of the Road Accident Fund Act 56 of 1996 – no
new claim form required in terms of s 24 in respect of additional injury discovered after
institution of action – claim in respect of subsequently discovered injury not introducing
new cause of action.

Neutral Citation:         This judgment may be referred to as Nonkwali v Road
Accident Fund (105/2007) [2008] ZASCA 3 (06 March 2008).

MAYA JA/

MAYA JA:

[1] At about 16h00 on 16 October 2001 a motor vehicle in which the
appellant was being conveyed as a passenger was involved in a collision as a
result of which she sustained serious bodily injuries. She instituted an action
for damages arising out of the accident in terms of s 17(1) of the Road
Accident Fund Act 56 of 1996 (the Act)1 in the Mthatha High Court which
the respondent duly defended.

[2] Almost four years after the collision, on 10 June 2005, the appellant
amended her pleadings, without objection, to include a claim for damages
suffered consequent upon a head injury allegedly sustained in the accident.
The head injury was not previously listed among the injuries detailed in her
claim form and accompanying medical report lodged with the respondent in
terms of s 24 of the Act as it was discovered only subsequently. The
respondent filed a special plea alleging that, in respect of the head injury, the
claim form did not comply with the provisions of s 24 for failure to specify
such injury. In the alternative, the special plea averred that such claim was
prescribed in terms of s 23 of the Act2 in that it was instituted more than
three years after the accident.

1 Section 17 of the Act confers on a third party a claim against the Road Accident Fund for any loss or
damage suffered by him or her as a result of any bodily injury to himself or herself arising from the driving
of a motor vehicle if the injury is due to the negligence or other wrongful act of the driver or owner of the
motor vehicle.
2 Section 23 of the Act provides:
‘(1) Notwithstanding anything to the contrary in any law contained, but subject to subsections (2) and (3),
the right to claim compensation under section 17 from the Fund or an agent in respect of loss or damage
arising from the driving of a motor vehicle in the case where the identity of either the driver or the owner
thereof has been established, shall become prescribed upon the expiry of a period of three years from the
date upon which the cause of action arose.
(2) …
(3) Notwithstanding subsection (1), no claim which has been lodged in terms of section 24 shall prescribe
before the expiry of a period of five years from the date on which the cause of action arose.’

[3] At the trial the parties agreed that the court below should first
determine the validity of the issues raised in the special plea. The court
(Ndzondo AJ) upheld the special plea on the main ground, on the basis that
the appellant was obliged to first submit to the respondent a duly amended
claim form specifying the head injury before amending her pleadings so as
to enable the respondent to investigate whether or not the head injury was
sustained in the accident. The court went further and held that even if it had
decided the latter question in the appellant’s favour, such a claim would
nonetheless be unenforceable by reason of prescription. The appellant
challenges the decision with the leave of the court below and the issues
before us remain unchanged.

[4] The relevant provisions of s 24 of the Act read:
‘Procedure
(1) A claim for compensation and accompanying medical report under section 17(1)
shall –
(a) be set out in the prescribed form, which shall be completed in all its particulars;
(b) be sent by registered post or delivered by hand 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.
(2) (a) The medical report shall be completed on the prescribed form by the medical
practitioner who treated the deceased or injured person for the bodily injuries sustained
in the accident from which the claim arises, or by the superintendent (or his or her
representative) of the hospital where the deceased or injured person was treated for such
bodily injuries: Provided that, if the medical practitioner or superintendent (or his or her
representative) concerned fails to complete the medical report on request within a
reasonable time and it appears that as a result of the passage of time the claim concerned

may become prescribed, the medical report may be completed by another medical
practitioner who has fully satisfied himself or herself regarding the cause of death or the
nature and treatment of the bodily injuries in respect of which the claim is made.’

[5] It was submitted on the appellant’s behalf that she substantially
complied with the relevant provisions as she completed the claim form in
good faith and filled in all such details as were available to her at the time.
Counsel for the appellant further contended that the additional claim did not
introduce a new cause of action but was merely a new item of damages such
that it was not necessary to amend her claim form to avoid prescription.

[6] It was contended on the respondent’s behalf, on the other hand, that
the provisions of s 24 obliged the appellant to submit a claim form,
including a medical report duly completed by a medical practitioner, in
respect of the head injury. Her failure to do so was fatal as it meant that no
claim had been lodged in respect of this injury, so continued the argument.

[7] I cannot agree with the respondent’s submissions. The reasons are
simple. It was not in issue in the court below that the head injury had not
been diagnosed when the claim form was completed and submitted to the
respondent. No allegation at all was made in the special plea that the injury
was known at the material time and the case clearly proceeded on the basis
that the injury was discovered in subsequent medical examinations. It was
further not in dispute that the appellant placed all the relevant facts available
to her at the time at the respondent’s disposal. That being so, there is no
basis whatsoever on which it could be found that the appellant did not

comply, not just substantially as argued on her behalf, but fully with the
provisions of s 24 of the Act.

[8] The alternative argument relating to prescription can, in my view, also
be given short shrift. Authorities are legion to the effect that a plaintiff who
claimed compensation for damages sustained as a result of wrongful and
negligent driving under the Act’s predecessors3 had but a single, indivisible
cause of action4 and that the various items constituting the claim were thus
not separate claims or separate causes of action.5 This interpretation, in my
view, necessarily extends to claims brought under the Act as it has the same
objective and effect as these previous statutes.

[9] The effect of this finding cannot be articulated better than Corbett JA
did in Evins v Shield Insurance Co Ltd.6 There, the court dealing with the
concept of a single cause of action in the context of prescription with regard
to the amendment of a plaintiff’s claim as originally pleaded by him, said:
‘Where the plaintiff seeks by way of amendment to augment his claim for damages, he
will be precluded from doing so by prescription if the new claim is based upon a new
cause of action and the relevant prescriptive period has run, but not if it was part and
parcel of the original cause of action and merely represents a fresh quantification of the
original claim or the addition of a further item of damages.’

3 The Motor Vehicle Insurance Act 29 of 1942 and the Compulsory Motor Vehicle Insurance Act 56 of
1972.
4 In Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) the court, discussing the proper legal meaning of
the expression ‘cause of action’ in the context of an action for damages for bodily injury, said at 838H-
839A: ‘[T]he basic ingredients of the plaintiff’s cause of action are (a) a wrongful act by the defendant
causing bodily injury, (b) accompanied by fault, in the sense of culpa or dolus, on the part of the defendant,
and (c) damnum, ie loss to plaintiff’s patrimony, caused by the bodily injury. The material facts which must
be proved in order to enable the plaintiff to sue (or facta probanda) would relate to these three basic
ingredients and upon the concurrence of these facts the cause of action arises.’
5 See, for example, Lampert-Zakiewicz v Marine & Trade Insurance Co Ltd 1975 (4) SA 597 (C) at 601D-
E; Schnellen v Rondalia Assurance Corporation of SA Ltd 1969 (1) SA 517 (W) at 520H-521F.
6 1980 (2) SA 814 (A) at 836C-E.

(Emphasis added.)

[10] In the event, the claim for damages relating to the appellant’s head
injury did not constitute a new cause of action but was merely an additional
item to her original cause of action. The appellant’s amendment to her
summons did, therefore, interrupt the running of prescription in respect of
the further claim. It was thus not necessary for her to lodge an amended
claim form.7

[11] Accordingly, the appeal is upheld with costs. The order of the court
below upholding the special plea is set aside and substituted with an order
dismissing the special plea with costs.

____________________
MML MAYA
JUDGE OF APPEAL

CONCUR:
STREICHER JA
VAN HEERDEN JA

7 See Boti v Unie en Nasionale Versekeringsmaatskappy, Bpk 1968 (4) SA 567 (O).