Constantia Insurance Co Ltd v Nohamba

• Jurisdiction: South Africa
• Judge: Corbett JA, Joubert JA, Boshoff JA, Galgut AJA and Nicholas AJA
• Judgment Date: 27 March 1986
• Hearing Date: 24 February 1986
• Court: Appellate Division

Galgut AJA:

This is an appeal from the judgment of the Full Court of the Eastern Cape Division which is reported as Constantia Insurance Co Ltd v Nohamba 1984 (4) SA 927 (E). The Full Court was dealing with an appeal to it from a decision of F KROON AJ. That decision is also reported. See Nohamba v Constantia Insurance Co Ltd 1984 (2) SA 791 (E). The Full Court made an order dismissing the appeal with costs. As stated it is that judgment which is before us on appeal.

The facts and relevant sections of the Act and regulations are set out in the above reports. Because of certain issues raised G during and after the hearing of this appeal and also because it will facilitate the reading of this judgment, I deem it advisable to set out the evidence in some detail.

On 17 September 1980 respondent ("plaintiff") was walking across a road in Fort Beaufort when he was knocked down by a motor vehicle being driven by one Rumbu. The vehicle was H insured by appellant ("defendant") under the Compulsory Motor Vehicle Insurance Act 56 of 1972 ("the Act"). Plaintiff sued the defendant, as the authorised insurer of the vehicle, for compensation for his injuries. These, he alleged, had been caused by the negligent driving of the said Rumbu.

Prior to the issue of summons the plaintiff had, on 19 March I 1982, forwarded to defendant the MVA 13 claim form ("the form") as he was required to do by s 25 (1) of the Act. It is the form prescribed in the regulations published pursuant to s 32 of the Act. Section 16 (1) (a) (i) of the regulations requires a reply to be given to each question in the form, and states that if a question is not applicable the words "Not applicable" shall be inserted and that supporting documents, including medical reports, are to be attached. The information J required from a claimant is

Galgut AJA

A very detailed and is not limited to the accident. Paragraph 6 seeks answers to 19 questions. Of these the following are relevant. The claimant has to set out:

'(h)

(His) Business or occupation.'

'(m)

Names and addresses of all medical practitioners who attended to him/her after the accident (if known).'

'(n) (i)

At which hospital or nursing home or other place if any did he/she receive treatment B after the accident?

(ii)

............

(iii)

............

(iv)

............'

'(q) (i)

Name and address of employer at date of accident...

(ii)

Period in his C employ, from... to...

(iii)

Nature of work.

(iv)

Date of resumption of work.'

'(r)

Was he/she injured... in the course of his/her employment (Yes or no).'

'(s)

State his/her income for the 12 months preceding the accident -

(i)

from employment...

(ii)

from any D other source...'

Paragraph 9 is headed "Compensation claimed". The opening paragraph under this heading stresses that precise details must be given supported by vouchers where applicable. The details then sought are listed as follows:

'(i) Hospital expenses (provincial hospitals)	R
(ii) Hospital expenses (other hospitals)	R
(iii) Medical expenses	R
(iv) Estimated future medical expenses	R
(v) Loss of earnings (from date of accident to date hereof)	R
(vi) Estimated future loss of earnings	R
(vii) Estimated loss of support	R
(viii) General damages (specify whether for pain and suffering, permanent disability, etc)	R'

F Paragraph 10 of the form reads:

'10

If the person mentioned in para 6 above was killed or injured in the course of his/her employment state:

(i)

Whether the claimant is entitled to compensation under the Workmen's Compensation Act 30 of 1941, as amended. (YES or NO)...

(ii)

If YES, state whether the Workmen's Compensation G Commissioner or his/her employer, as the case may be, has been notified that a claim is being lodged against the authorised insurer named in para 1 above (YES or NO)...

(iii)

If YES, give date and details of such notification and state by whom given...

(iv)

If the claimant has already been compensated H in terms of the Workmen's Compensation Act, state amount received... and Workmen's Compensation Commissioner's reference...'

The form then ends as follows:

'I hereby declare that to the best of my knowledge and belief all the information contained in this form is true and correct.'

In subpara (i) the plaintiff's answer given was "NO", the I printed word "YES" being deleted. Diagonally across the whole of the subparas (ii), (iii) and (iv) the words "Not applicable" were written. I pause to say that having answered "No" to subpara (i) it followed that plaintiff was required by reg 16 (1) (a) (i) to write "Not applicable" in answer to subparas (ii) and (iv). The form was duly signed by plaintiff as being true and correct to the best of his knowledge and belief. It J was received by appellant on 19 March 1982.

Galgut AJA

The summons was issued on 20 August 1982. The plaintiff in A paras 1 - 7 thereof gave details of the accident, the acts of negligence on which he relied and the amounts he was claiming. There then followed the following allegation in para 8:

'8.

The provisions of s 25 (1) of Act 56 of 1972 have been complied with.'

The defendant requested further particulars. These were B furnished on 11 February 1983. They set out inter alia that plaintiff was employed, at the time of the accident, as a salesman. A medico-legal report dated 12 August 1982 was annexed to the further particulars. This report states that plaintiff was a door-to-door salesman. It further states, under the heading "Loss of earnings", that during the time he was off C work "he would have received some compensation from the Workmen's Compensation Commissioner".

Defendant then filed its plea on 22 February 1983. It denied therein that Rumbu had been negligent and denied liability. It did however in its para 5 admit para 8 of the plaintiff's particulars of claim, viz that the provisions of s 25 (1) of the Act had been complied with.

On 24 May 1983 the defendant gave notice of its intention to D amend its plea by the addition of the following paragraph:

'7.

In the event only of this honourable Court however finding that the defendant is liable to the plaintiff for damages arising out of the said collision, the defendant pleads further as follows:

(a)

At the time of the said collision the E plaintiff was a 'workman' in terms of the Workmen's Compensation Act 30 of 1941 and the said collision was 'an accident' as envisaged by the Act.

(b)

The Workmen's Compensation Commissioner has to date paid to the plaintiff the sum of R2 150,34 as compensation in respect of damages which he has suffered in consequence of the F said collision.

(c)

In the premises the defendant's liability to the plaintiff must be reduced by the said sum of R2 150,34 and by any further amount which may be paid by the Workmen's Compensation Commissioner to the plaintiff as compensation arising out of the said G collision.'

There being no objection, the defendant filed the amended plea on 16 June 1983.

It is quite clear that appellant on both dates had full knowledge of the fact that respondent was a "workman" at the time of the collision; that he was entitled to workman's H compensation; that he had received such compensation in the amount of R2 150,34; that this amount fell to be deducted from respondent's claim. Appellant did not seek to withdraw the admission in its plea, viz that s 25 (1) of the Act had been complied with.

Thereafter, on 27 October, defendant gave notice, together with the details, of its intention to amend its plea. Plaintiff did I not object and defendant accordingly, on 21 November, filed a special plea. It also withdrew the admission in para 5 of its plea and denied that plaintiff had complied with s 25 (1) of the Act. It is surprising that the withdrawal of the admission was not opposed. In the special plea defendant alleged that plaintiff had given false and inaccurate answers in para 10 of the form; that by so doing he had failed to comply substantially with s 25 (1) of the Act; that by reason of the J provisions of s 25 (2) of the Act his claim against

Galgut AJA

A the defendant was unenforceable. No replication to the special plea was filed and indeed in terms of Rule 25 (a) of the Rules of Court ("the Rules") there was no need to do so.

When the matter came to trial the parties placed before the learned Judge a minute. I have substituted Roman figures for B each paragraph therein. In para (i) it was agreed that the Court would be asked to decide, separately from any other question, the issue in the special plea on the basis of "the agreed stated case annexed hereto and with reference to the pleadings".

Paragraphs (ii), (iii) and (iv) of the minute read:

'(ii)

The parties have further agreed that the above issues shall be the only matter to be determined at this stage...

(iii)

In the event of the C question referred to in para (i) above being determined in favour of defendant, it is agreed that the plaintiff's claim should be dismissed with costs.

(iv)

In the event of the question referred to in para (i) above being decided in favour of the plaintiff against the defendant, the costs of the argument on such question will be costs in the cause in the main action which will then continue against the defendant.'

D The "stated case", which was duly signed by both counsel and the attorneys as required by Rule 33, sets out prior history in paras 1 and 2 thereof and proceeds:

'3. (a)

In the MVA 13 claim form submitted by the plaintiff to the defendant as aforesaid, it was expressly stated E that the plaintiff was not entitled to receive compensation under the...