Road Accident Fund v Mothupi

The respondent was seriously injured as a passenger in a motor vehicle collision on 3 August 1991. A claim form was lodged with the statutory insurer (Santam) on 3 August 1993. Summons was only served in February 1997 against the Road Accident Fund, Santam’s statutory successor. The applicable statutory scheme required summons to be issued within five years of the claim arising, provided the claim form had been lodged timeously. The Fund raised a special plea of prescription. The respondent contended that the claim had not prescribed because the Fund had impliedly waived reliance on prescription, alternatively that it was constitutionally unfair to invoke prescription.

The appeal was upheld. The order of the court a quo was set aside and replaced with an order upholding the Fund’s special plea of prescription, resulting in the dismissal of the plaintiff’s claim.

The case is a leading authority on waiver of prescription in South African law. It confirms that waiver of a statutory defence requires clear and unequivocal conduct and that engagement in settlement negotiations or concession of merits does not, without more, amount to waiver of prescription. It underscores the strict application of statutory prescription in Road Accident Fund matters after the repeal of condonation provisions.