In our previous article we touched on stages of prescription but only focused on one stage which is a period for lodgement of a claim from date of accident/death. In this article we are going to take an impeccable look at other two stages of prescription, namely period after date of lodgement and period after issue of summons.
Below we are going to discuss what is of paramount importance to note to help you understand what is meant by lodgement of a claim. Please take further note on these two following terms:
· Issuing of summons
· Serving of summons
After a valid claim has been lodged the above must be taken into consideration when calculating prescription.
The issuing of summons relates to opening of a Court file and a case number being allocated to the matter. This will be done by the Clerk of the Magistrate Court or the Registrar of the High Court depending on the quantum claimed which is a matter for another day. The Court will stamp original summons as well as copies of the summons which stamp must reflect a date on which the summons were issued.
Serving of summons can only occur after the summons have been issued as stated above. This must be done by fixing original summons as well as copies to the Sheriff having jurisdiction in that area for service at the Road Accident Fund offices. It is always advisable to obtain Return of Service from the Sheriff who was serving the summons to avoid any uncertainty as to the date of service that may arise.
Let’s take a look at prescription period for unidentified claims or Hit and Run claims as many would refer, take note that this is dealt with by the regulations contained in both the RAF Act of 1996 as well as the RAF Amendment Act of 2005. In terms of Regulation 2 a claim has to be lodged with the RAF within two years from the date of accident in personal injury claims, and within two years from the date of death in loss of support and funeral claims.
The two-year calculation of prescription period for lodgement of claims lodged both under the RAF Act of 1996 and the Amendment Act is calculated in accordance with the civil method of calculation. The first day must be included and the last day excluded.
The five-year calculation of prescription period for summons of claims lodged under both the RAF Act and the Amendment Act is also calculated in accordance with the civil method of calculation discussed above.
In conclusion, for the lodgement of a claim to interrupt prescription the said claim must be valid, meaning it must substantially comply with the Act. The service of an invalid claim does not interrupt prescription. In terms of Section 26(6) of the Act no claim is enforceable by legal proceedings commenced by a summons served at the Road Accident Fund before the expiry of a period of 120 days as from the date on which a valid claim is lodged. However, should the claim be repudiated in writing before the expiry of this period, a summons may be issued immediately thereafter.
Article by: Thobekani Khanyile (Candidate Attorney)