Eksteen v Road Accident Fund

The appellant, Johan Sebastiaan Eksteen, was injured as a passenger in a motor vehicle collision on 18 June 2003. He lodged a claim with the Road Accident Fund (RAF) in June 2004 and instituted an action in the Bloemfontein Magistrate’s Court in January 2008. That action remained pending. After the enactment of the Road Accident Fund (Transitional Provisions) Act 15 of 2012 (TPA), and without withdrawing the magistrate’s court action, the appellant instituted a second action in the Free State Division of the High Court in October 2016 arising from the same collision but claiming higher damages. The RAF raised special pleas of lis alibi pendens and prescription. The Full Bench of the High Court upheld both special pleas and dismissed the claim. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld in part with costs. The High Court’s order was set aside and replaced with an order upholding the special plea of lis alibi pendens, declining to determine the special plea of prescription due to inadequate agreed facts, and directing that the costs of the special pleas be costs in the cause. The matter was referred back to the High Court for trial before a differently constituted court.

This case is significant for clarifying the operation of section 2(1)(e)(ii) of the Road Accident Fund (Transitional Provisions) Act, particularly the requirement that a magistrate’s court action must be withdrawn before a claimant can validly rely on the transitional mechanism to institute a High Court action. It also underscores that parallel proceedings will attract a plea of lis alibi pendens, and that courts should not determine prescription without a proper factual foundation. The judgment contributes to resolving conflicting High Court decisions on the interpretation of the TPA.