Evins v Shield Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Jansen JA, Trollip JA, Corbett JA, Joubert JA and Galgut AJA
• Judgment Date: 04 March 1980
• Citation: 1980 (2) SA 814 (A)
• Hearing Date: 13 November 1979
• Court: Appellate Division

Jansen JA:

I agree that the appellant's right of action is prescribed for the reasons given by TROLLIP JA and that the appeal should be dismissed with costs.

A At this stage I wish to express no opinion as to the approach adopted by CORBETT JA. That approach may, in my respectful view, require a reevaluation of cases such as Green v Coetzer 1958 (2) SA 697 (W) and Schnellen v Rondalia Assurance Corporation of SA Ltd 1969 (1) SA 517 (W), as also of dicta such as found in Casely NO v Minister of Defence 1973 (1) SA 630 (A) at 642C - E and Kruger v Santam Versekeringsmaatskappy Bpk 1977 (3) SA 314 (O) B at 318D - G. It may even be desirable to re-examine the so-called 'once and for all' rule and inquire whether in our law its application should not, in appropriate circumstances, be restricted (cf C F C van der Walt Die Sommeskadeleer en die 'Once and for All'-reël). In C view of these difficulties I prefer, as TROLLIP JA does, to leave the whole matter open.

Judgment

Trollip JA:

I agree that the appeal should be dismissed with costs, but for different reasons from those given in the judgment of CORBETT JA. The facts are fully set out in that judgment and need not be repeated here, save for those that directly relate to my reasoning.

D However sympathetic a view one may initially take of appellant's case, it is so evident to me that it must ultimately founder on the provisions of s 15 (2) of the Prescription Act 68 of 1969 that I prefer to base my judgment entirely on that obvious, insurmountable obstacle to the success of her case.

E My reasons for taking that judicial short cut are very briefly these. Despite the cogency of the reasoning in the judgment of my Brother CORBETT, I still remain somewhat uncertain whether appellant's claims for her bodily injuries and her loss of support constitute two separate rights of action under the common law and the Compulsory Motor Vehicle Insurance F Act 56 of 1972 ('the CMVI Act'). I prefer to use the term 'right of action' to 'cause of action' because, I think, the former is strictly and technically more legally correct in the present context (cf Mazibuko v Singer 1979 (3) SA 258 (W) at 265D - G). 'Cause of action' is ordinarily used to describe the factual basis, the set of material facts, that begets the plaintiff's legal right of action and, complementarily, the dependant's 'debt', the word used in the Prescription Act. The term, G 'cause of action', is commonly used in relation to pleadings or in statutes relating to jurisdiction or requiring prior written notification of a claim before action thereon is commenced. But it is not used in either the CMVI Act or the Prescription Act. And its use in the present context may possibly lead to erroneous reasoning. For in claims in delict H for damages under the common law or for compensation under the CMVI Act, I am not sure that it necessarily follows that, because one factual basis differs from another in some respect or respects, separate or different rights of action arise; on the contrary, both cases may nevertheless beget only one right of action or debt, eg one for the plaintiff's entire patrimonial loss. The cases of Green v Coetzer 1958 (2) SA 697 (W) and Schnellen v Rondalia Assurance Corporation of SA Ltd 1969 (1) SA 517 (W) - if they were correctly decided - are apposite illustrations of that.

Trollip JA

In the latter kind of cases problems, similar to those mentioned in the judgment of CORBETT JA, could also arise. For example, the plaintiff's A bodily injuries (in the Green type of case) or his minor child's bodily injuries (in the Schnellen type of case) may not manifest themselves and necessitate treatment, expenditure, etc until some time after the plaintiff's other loss or damage has already been caused by the wrongdoing in question. Such problems, if and when they should arise, would have to be resolved, for better or for worse for the plaintiff, by the ordinary B relevant principles of the law. Cf for example Swanepoel v SAR and H 1927 OPD 267; Lanfear v Du Toit 1943 AD 59. I am also not sure what the correct position is under the CMVI Act. The anomalies mentioned by CORBETT JA are aggravated thereunder by the short period of prescription enacted in s 24 (1) - two years from 'the date upon which the claim arose' - and the C special peremptory, preliminary procedure laid down in s 25 (1) for enforcing claims. Whatever the true position is under the common law perhaps this Act has, by s 21, read with ss 24 (1) and 25 (1), severed a third party's right of action into separate claims for (a) compensation in respect of bodily injury to himself, and (b) compensation for loss or D damage resulting from the death of another. I express no firm view on this aspect either. But if so then presumably claim (b) would only 'arise' on the death of the latter from when the two year period of prescription enacted in s 24 would run, and the procedure laid down by s 25 for enforcing claims would have to be followed for each of claims (a) and (b), either simultaneously or otherwise, as the case may be. As I am not E confident of the correct answers to any of the aforementioned problems, I prefer to leave them all open.

Hence I shall assume without deciding in favour of appellant, firstly, that she had a single, undivided right of action under the CMVI Act against respondent, the insurer of the vehicle, for compensation (i) in F respect of her bodily injuries, and (ii) for loss of support through the death of her husband, both caused on 30 March 1972 by the negligent driving of Henning; and, secondly, that the service of the first summons (No 6391 of 1973) on respondent on 30 August 1973 duly interrupted the running of prescription under s 15 (1) of the Prescription Act in respect of both elements (i) and (ii) of her right of action or (correspondingly) respondent's debt.

G In my view it is quite clear that thereafter appellant divided and separated or split that right of action or debt into the two elements (i) and (ii). For she then took the following steps:

1. On 27 September 1976 she sent respondent a fresh (the second) MVA 13 form claiming for loss of support only.

H 2. On 26 January 1977 she issued and served on respondent the second summons (No 966 of 1977) claiming for loss of support only.

3. On 24 February 1977 she gave notice of an intention to amend the particulars of her claim in the first action by deleting or excising therefrom all reference to the claim for loss of support.

4. Since respondent did not oppose that amendment, she duly amended her particulars of claim in the first action and filed the amended particulars on 22 March 1977.

5. Consequently, in the first, amended action, appellant now claimed

Trollip JA

compensation for bodily injuries only, and in the second action, compensation for loss of support only.

6. These two separate actions followed their own distinct courses until A the pleadings in each were closed. Thereafter, appellant applied for their consolidation for the purpose of the hearing. This was granted on 18 July 1978.

By thus embodying each of the aforementioned elements of the (assumed) single, undivided right of action or debt into a separate, distinct B action, appellant effectively divided and separated or split that right of action or debt into its two elements (i) and (ii). Ordinarily, a creditor cannot divide and separate or split such a right of action or debt without the consent of the debtor (see Spies v Hansford & Hansford Ltd 1940 TPD 1; Lief NO v Dettmann 1964 (2) SA 252 (A) at 275F - G). The reason is the possibility that it may render the debtor's position more burdensome by C causing him prejudice, hardship, or inconvenience (see the Spies case at 8 - 9). In so far as respondent's consent was required for what appellant did, it is manifest that such consent was tacitly given. That is to be inferred from the following. At no stage did respondent offer the slightest objection or opposition to such separation or splitting of the right of action or debt; on the contrary, it accepted it and conducted its D pleadings and defence on the basis that there were now separate claims for compensation for her bodily injuries and loss of support respectively; for example, respondent did not oppose the amendment to appellant's particulars of claim in the first action excising therefrom the claim for loss of support; indeed after it became effective, respondent amended its E plea to accord therewith; and in the second action it put up the separate, distinct defence by way of special plea that the right of action or debt for loss of support had become prescribed.

I turn therefore to consider that special plea of prescription in the light of the above facts.

The relevant provisions of the Prescription Act are these:

'15 (1)

F The running of prescription shall, subject to the provisions of ss (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

(2)

... the interruption of prescription in terms of ss (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment...'

G Now, I have assumed in appellant's favour that her first summons duly interrupted the running of prescription under s 15 (1) in respect of both elements (i) and (ii) of the right of action or debt, ie the claim in respect of her bodily injuries and loss of support respectively. Such interruption was, in terms of s 15 (1), 'subject to the provisions of ss (2)'. That first summons was 'the process in question' mentioned in ss H (2). Thereafter, appellant, with respondent's tacit consent, divided and separated or split the right of action or debt into those two elements (i) and (ii)...