Ngcobo v Van Zyl and Another

• Jurisdiction: South Africa
• Judge: Leon J
• Judgment Date: 07 January 1977
• Citation: 1977 (2) SA 303 (D)
• Hearing Date: 02 December 1976
• Court: Durban and Coast Local Division

Leon, J.:

This is the return day of a rule nisi in which the second respondent was called upon to show cause why leave B should not be given to the applicant to serve a summons on the second respondent, an insurance company, for damages arising out of a motor collision on 11 April 1974.

The application is one under sec. 24 (2) (a) (ii) and (iii) of Act 56 of 1972. There are certain allegations made on behalf of the applicant which have either not been admitted by the second respondent or in respect of which the second respondent has C stated that it has no knowledge thereof. However, Mr. Combrinck, who appeared on behalf of the second respondent, conceded at the hearing that the application should be decided upon the basis that the facts stated in the affidavits filed on behalf of the applicant were correct.

On 11 April 1974 the applicant, who was a pedestrian at the D time, was knocked down by a motor vehicle. Her claim for damages arising out of the collision became prescribed at midnight on 10 April 1976.

Sec. 24 (2) (a) provides that:

"If a third party's claim for compensation has become prescribed under sub-sec. (1) of this section and a court having jurisdiction in respect of such claim is satisfied, upon application by the third party concerned -

(i)

E where the claim became prescribed before compliance by the third party with the provisions of sec. 25 (1), that by reason of special circumstances he could not reasonably have been expected to comply with the said provisions before the date on which the claim became prescribed; or

(ii)

where the claim became prescribed after compliance by him with the said provisions, that by reason of special circumstances he could not reasonably have been expected to serve any process, by which the F running of prescription could have been interrupted, on the authorised insurer before that date; and

(iii)

that the authorised insurer is not prepared to waive its right to invoke the prescription,

the court may grant leave to the third party to comply with the said provisions and serve process in any action for enforcement of the claim on the authorised insurer in accordance with the provisions of sec. 25 (2) before a date determined by the court or, as the case may be, to serve such process on the authorised G insurer, before a date so determined."

Sec. 25 (2), to which these provisions refer, is that barring litigation to enforce sec. 21 against an "authorised insurer" which has not been supplied 90 days earlier with the formal claim for compensation required by sec. 25 (1). Sec. 24 (2) H (c), which must be read with sec. 24 (2) (a), reads:

"A plea of prescription in terms of sub-sec. (1) shall not be upheld in any action in which the relevant process was served on an authorised insurer by virtue of leave granted under this sub-section."

The applicant did not consult an attorney but consulted one David Straw of the firm Straw and Begemann to commence proceedings for the recovery of damages. The latter encountered difficulties in obtaining information as to the vehicle which had collided with the applicant. In reply to an enquiry addressed by him to the police on 24 March 1975, he was informed

Leon J

that the police had no record of the accident. Later, however, the applicant obtained the registration number - ND 45702 - from the police and as a result the owner of that vehicle was traced by the licensing department. The first respondent is that person.

On 8 March 1976 Straw wrote to the first respondent referring A him to sec, 20 (2) of the Act and requesting that he produce the declaration of insurance relating to the vehicle that had been involved in the accident. In reply to that request the first respondent stated that he was unable to supply the declaration of insurance or the token B number although he had been through all his records.

By reason of the fact that the declaration of insurance could not be traced and that the insurance token number was unknown, Straw thought that he would commence proceedings against the C first respondent and the Motor Vehicle Insurance Fund. As the prescription deadline of 10 April 1976 was approaching he felt obliged to take some action as a matter of urgency. On 6 April 1976 he wrote to the first respondent and the Motor Vehicle Insurance Fund enclosing MVA 13 and MVA 22 forms. The first respondent received the letter enclosing the relevant forms on 9 April and the next day delivered the letter and the MVA 13 form to the second respondent at its local offices in Durban. It is necessary to refer to two aspects of the MVA 13 form. In D para. 1 of that form under the heading "name of authorised insurers from whom compensation is claimed" the second respondent's name had been typed but is deleted and above it the following appears: "Gielam M. van Zyl (quasi -insurer)." Next to the heading token/insurance declaration E number, the word "unknown" appears.

On 13 April 1976 the second respondent wrote to Straw and Begemann acknowledging receipt of their letter of 6 April. In that letter reference is made to having received "completed claim form". Under the heading of the letter the following appears:

F "M.V.A. claim under token No. unknown - Our insured G.M, van Zyl - accident 11 April 1974. Your insured - R. T. Ngcobo your reference S9910 DPS/AW."

In the meantime Straw had telephoned the second respondent in Johannesburg and spoken to one Van der Berg who had indicated that he was making every endeavour to trace the accident report form filled in by the first respondent and to obtain the declaration of insurance. He also informed Straw that without G the insurance token number he was having great difficulty in tracing these documents.

It is the applicant's submission that the first respondent, in delivering the MVA 13 form to the second respondent on 10 April 1976, caused the applicant to comply with sec. 25 (1) of the Act. What happened thereafter is reminiscent of the game of H table tennis. On 23 April 1976 the second respondent wrote to Straw and Begemann referring to their letter of 6 April 1976 and returned the MVA 13 form. In that letter Straw and Begemann were requested to furnish the second respondent with the insurance token number and stating that without that number a claim could not be lodged. In view of the fact that Straw and Begemann did not have that information they were necessarily unable to give it to the second respondent. On 29 April 1976 they wrote again to the second respondent and returned

Leon J

the MVA 13 form but the second respondent would not have any of this and...