Question

You are an Attorney representing the Road Accident Fund and in the process of drafting your client’s plea in respect of a damages claim, arising from injuries sustained in a collision which occurred on 17th April 2020. The file of papers you received from your client contains the bundle of documents delivered to the RAF when the claim was lodged. A perusal of the documents indicates that the claim documents fall short of compliance with the provisions of the Road Accident Fund Act No. 56 of 1996, in that an affidavit by the Plaintiff in which the particulars of the accident giving rise to the claim are fully set out, was not submitted. Draft the pleading necessary to raise non-compliance with Section 19(f)(i) of the Road Accident Fund Act No. 56 of 1996. Omit headings and citations and draft only the necessary pleadings.

Answer 1

1. The defendant admits that a collision involving the plaintiff and/or the plaintiff’s vehicle allegedly occurred on 17 April 2020, but denies that the plaintiff complied with the statutory pre‑conditions to institution of this action.

2. On the defendant’s information and belief, and insofar as the defendant is able to plead from the documents provided to the Road Accident Fund, no affidavit by the plaintiff in which the particulars of the accident giving rise to this claim are fully set out was delivered to the Road Accident Fund prior to the institution of these proceedings.

3. The defendant accordingly pleads that the plaintiff has failed to comply with the statutory requirements which are a pre‑condition to the prosecution of this claim, and that the plaintiff’s cause of action is therefore not competent.

4. As a consequence of the non‑compliance pleaded above, the defendant raises as a special plea that the summons and particulars of claim are defective and that the plaintiff is not entitled at this stage to proceed with this action.

5. The defendant therefore requests that the court – (a) strike the matter from the roll and/or dismiss the plaintiff’s claim; alternatively (b) stay the proceedings and order that the plaintiff furnish the required affidavit within a period determined by the court and, if necessary, apply for condonation for the failure to comply, failing which the claim shall be dismissed; and (c) order that the plaintiff pay the defendant’s costs occasioned by the non‑compliance, including the costs of this special plea.

6. The defendant reserves the right to amend or supplement this plea and to raise any further special pleas or defences which may become apparent on the production of further documents or evidence.