Prescription periods vary in terms of a Road Accident Fund claim depending on whether or not it is an ‘identified’ or ‘unidentified’ claim. Section 17(1)(a) of the Road Accident Fund Act, 56 of 1996 deals with the issue of identified claims.
IDENTIFIED CLAIMS
An identified claim means that the identity of either the driver or the owner of a motor vehicle has been established. This means the identity of the driver or owner of the so-called wrongdoing vehicle. In this instance, prescription of the claim happens three years from the date of accident.
UNIDENTIFIED CLAIMS
Section 17(1)(b) of the Road Accident Fund Act deals with the issue of unidentified claims. An identified claim in layman’s terms is a ‘hit-n-run’ claim. According to Section 17(1)(b), a claim is unidentified where the identity of neither the owner nor the driver of the vehicle in question is established.
In cases of unidentified claims or hit-n-run’s the prescription period applicable is two years from the date of accident. It is for this reason that it is of cardinal importance for the victim of a motor vehicle accident to gather as much information as possible regarding the vehicles and the drivers of such vehicles that are involved in motor vehicle accidents, save for instances where the wrongdoing vehicle does not stop or flees the scene of an accident which makes identifying such person impossible.
Where the identity of neither the owner nor the driver of the wrongdoing vehicle has been established but the registration number of the wrongdoing vehicle was obtained, the claim will be classified as identified. This is so because the owner of the vehicle matching the obtained registration number is generally presumed to be the driver thereof.
To summarize the above, prescription is three years in terms of identified claims and two years in the case of unidentified claims. This means that it is in the best interest of the victim of a motor vehicle accident to obtain as much information as possible regarding the accident so as to ensure, where possible, that the prescription period is three years instead of two, which is advantageous to the victim where they are not immediately in the position to be able to lodge a claim against the Road Accident Fund.
In terms of both identified as well as unidentified claims summons must be issued within five years. Included within this five-year period is the three and two year prescription periods applicable to identified and unidentified claims respectively.
MINORS AND PRESCRIPTION
Where the victim of a motor vehicle accident is a minor, the situation regarding prescription starting to run from the date of the accident, whether it is an identified or unidentified claim, is different.
In Combrink and Another v Road Accident Fund and Another (31303/2008; 31306/2008) [2015] ZAGPPHC 760 (5 November 2015) a minor was involved in a motor vehicle accident. It was an unidentified claim. Although the claim was lodged within two years, the Plaintiff failed to issue summons before the combined five-year period had expired i.e. within 3 years after the two year period for an unidentified claim. The position prior to this case was that where a minor was involved in an identified claim, prescription would only commence once they attained the age of majority, however, if it were an unidentified claim, prescription started to run immediately.
The court found this provision to be unconstitutional. Since the decision in Combrink the position for unidentified claims is that the period of 3 years will only start to run once the minor has become a major.
The above is also affected by the fact that the age of majority differs prior to and after 1 July 2007. Prior to 1 July 2007 the age of majority was 21. After said date it changed to 18. This means that where a minor was involved in an accident prior to 1 July 2007, the age of majority applicable to him or her is 21 and the three year period will only commence once he or she reaches that age, conversely, where the minor was involved in a motor vehicle accident after 1 July 2007, the age of majority applicable to him or her is 18, and it is once they reach that age that the three year period will start to run.
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