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

/ / 2019, Civil Procedure, News


In August 1996, the Appellant (an employee of the the South African Police Service), was involved in a motor vehicle accident and suffered bodily injuries, whereafter a claim for damages was made against the Respondent, The Road Accident Fund (the ”Fund”).  

After several settlement offers being made by the Fund during the course of a three year negotiation (between 1996 to 1999), the Respondent proposed a full and final settlement in the amount of R63 088.45 (sixty three thousand and eighty-eight rand and forty-five cents). This offer was rejected by the Appellant on the grounds that the amount was substantially lower than his medical costs.  

The Fund, in turn, claimed that the Appellant had sustained injury to his loin in an unrelated incident and that its offer was fair, notwithstanding the fact that the Appellant’s  claim was about to prescribe. Albeit, under protest, the Appellant accepted the offer.  

In 2013, 14 (fourteen) years after the Appellant accepted the Fund’s offer) the Appellant came across a newspaper article on how certain people, who had been “undercompensated” by the Fund, were able to revive their claims.  

In 2013, the Appellant issued summons against the Fund on the basis that the Fund failed to act in the best interests of the Appellant in circumstances where it ignored a report of a neurosurgeon specialist who examined the Appellant and found that the he had sustained permanent disability. The Appellant alleged that the Fund  failed to act in accordance with its policy to treat and compensate accordingly.  

In its special plea, the Respondent contended that the Appellant’s claim had prescribed in terms of section 11 of the Prescription Act 68 of 1969 (the “Act”). To this end, the court a quo upheld the special plea and dismissed the Appellant’s claim.  

On appeal, the Appellant argued that prescription only began to run when he read the newspaper article in 2013 and contended that he had no knowledge of the facts, as contemplated in terms of section 12(3) of the Act.  


The Fund, argued that the Appellant was fully aware of the identity of the Respondent as debtor and despite believing that the offer was inadequate, the Appellant accepted the offer, which, in the Respondent’s view, was the end of the matter.


Before the Court came to its findings, it examined the provisions of section 12 of the Act which reads as follows:  

“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.”(my emphasis)
The Court held that the information which the Appellant had acquired in 2013 had absolutely no relation to the facts of the case, but rather concerned itself with a legal assumption that the Respondent could be liable on the basis of a duty of care.  

On or about 18 October 2013 (well over the 3 (three) year period), the Appellant alleged, in its particulars of claim, that the cause of action was based on the duty of care.  

In its findings, the Court was of the view that between 1999 and 2013 there were no new facts that came into play which the Appellant could present to the Respondent and held that the newspaper article which the Appellant had read in 2013 was merely an opinion based on a conclusion that there had been negligence on the Respondent’s part, which opinion had been readily available to the Appellant during the course of its initial negotiations with the Fund.  

The Court held that section 12(3) of the Act contains a deeming provision wherein the creditor is deemed to have  knowledge if he could have acquired it by exercising reasonable care.  

The Court held that the Appellant was a police officer and should have known that he could approach an attorney, at any time, for the necessary legal advice.  

In conclusion, the Court held that that Appellant, in no way, appreciated the legal consequences which flowed from the facts, which in turn, did not delay the running of prescription.  

The appeal was dismissed with costs.


A debt is only due when a creditor acquires a cause of action when the entire set of facts are in place.

Written by Katya Oberzhitsky and supervised by Jasvir Sewnarian

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