Tosholo v Road Accident Fund

On 9 July 2012, the appellant, Ms Phozisa Tosholo, was a passenger in a motor vehicle involved in an accident and sustained injuries. While at Tygerberg Hospital, she was approached by an RAF agent who advised her to claim at the RAF offices in the hospital. She lodged a direct claim with the RAF, which was settled on 18 November 2013 when she signed an offer of settlement for approximately R17,000. The appellant alleged she believed this settlement only related to past loss of earnings and expected further payment for pain and suffering and future loss of earnings. Subsequently, on 4 June 2014, her attorneys (Kruger and Company) lodged another claim with the RAF. The RAF informed the attorneys on 30 June 2014 that a claim had already been lodged and they could not register another claim, advising them to contact the Direct Claims Department for clarification, which was not done. The appellant's attorneys issued summons on 29 August 2014 for general damages and other losses. After obtaining medico-legal reports by 2017, and following an email from the RAF on 25 August 2017 indicating the claim had been settled, the appellant launched an interim payment application which was opposed. She then withdrew that application and the 2014 summons, and instituted fresh proceedings on 17 January 2018 based on alleged under-settlement and breach of duty of care by the RAF.

• Whether the appellant's claim was fully and finally compromised and settled by the agreement signed on 18 November 2013
• Whether the special plea of prior settlement should be upheld
• Whether the appellant's subsequent claim prescribed
• Whether the settlement agreement could be challenged or required rectification
• Whether the principles of pacta sunt servanda and res judicata applied to the settlement agreement

The appeal was dismissed with no order as to costs. The high court's judgment upholding the special plea of prior settlement was confirmed. Given the disposal of the appeal on the settlement issue, the Court found it unnecessary to consider the second special plea of prescription.

A written settlement agreement that clearly states it is in full and final settlement of a claim, and which discharges the debtor from all liability, is binding on the parties and has the effect of res judicata, putting an end to the lis between the parties. Such an agreement cannot be challenged through subsequent litigation unless it is properly impugned through pleadings seeking rectification or other appropriate remedies. Where a creditor unreservedly accepts an offer of settlement with conditions that they abandon the balance of their claim, they cannot retain the settlement amount and simultaneously sue for the balance. Courts must respect and enforce contractual agreements concluded freely and voluntarily in accordance with the principle pacta sunt servanda, and must exercise restraint to avoid undue imposition on the parties' contractual freedom. No evidence may be led to contradict the terms of a valid written contract absent proper challenge to its validity or rectification.

The Court made critical observations about the conduct of both parties and their legal representatives. It noted that the litigation could and should have been avoided by both the appellant's legal practitioner and the RAF. The Court observed that the RAF's conduct in encouraging lay litigants like the appellant to submit direct claims was problematic, given that such litigants may not be acquainted with the legal intricacies of personal damages claims. The Court criticized the RAF for unnecessarily prolonging the matter after summons was issued and for its inconsistent position, particularly when it seemed to admit on 29 August 2017 that the appellant's direct claim had been grossly under-settled based on medico-legal reports. The Court also criticized the appellant's attorneys for failing to follow the RAF's advice on 30 June 2014 to contact the Direct Claims Department to clarify the position before issuing summons, noting that all legal costs could have been avoided had they done so. The Court suggested it may be inappropriate for the appellant's attorneys to seek fees from her given the manner in which they handled her claim. These observations highlight the professional duties of both RAF officials and legal practitioners when dealing with vulnerable claimants in personal injury matters.

This case reinforces important principles in South African law regarding settlement agreements and compromise in the context of Road Accident Fund claims. It emphasizes that courts will enforce settlement agreements that are freely and voluntarily entered into, in accordance with pacta sunt servanda, and will not interfere with such agreements absent proper challenge through rectification or other legal remedies. The case serves as a warning to both legal practitioners and the RAF regarding their duties when dealing with lay litigants in personal injury claims. It highlights that legal practitioners must exercise due diligence when advised of prior claims and should clarify such matters before proceeding with litigation. The judgment also criticizes the RAF's practice of encouraging direct claims by unrepresented claimants who may not understand the legal intricacies of personal damages claims, while also noting that once such settlements are properly concluded, they will be enforced. The decision underscores the importance of proper pleading when seeking to challenge or rectify settlement agreements.