Jili v South African Eagle Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Combrink J
• Judgment Date: 27 January 1994
• Docket Number: 832/93
• Court: Natal Provincial Division
• Hearing Date: 24 November 1993
• Citation: 1995 (3) SA 269 (N)

E Combrink J:

On 15 March 1989 the plaintiff sustained bodily injuries when the motor vehicle in which she was a passenger was involved in a collision with a motor vehicle insured under the Motor Vehicle Accidents Act 84 of 1986. As a consequence the plaintiff instituted action against the defendant, an appointed agent under the Act, for compensation for loss F said to have been suffered by her as a result of the injuries. The defendant pleaded, among other things, that the plaintiff's right to claim compensation under the Act had become prescribed by virtue of the provisions of s 14(1) and (2) of the Act.

The parties have placed before Court a written statement of agreed facts G in terms of Rule 33(1) and (2) of the Uniform Rules of Court requesting that the validity of the plea of prescription be separately adjudicated.

The agreed facts are:

'1.

The collision giving rise to the plaintiff's claim occurred on 15 March 1989.

2.

The plaintiff duly lodged her claim for compensation in terms of s 8 H of Act 84 of 1986 ("the Act") on 26 February 1991.

3.

The defendant did not, within 60 days after receipt of plaintiff's claim form, object to the validity thereof.

4.

On 12 September 1991 the plaintiff received by registered post annexure "SC1" hereto.

5.

I The present action was instituted on 15 March 1993.'

Annexure SC1, referred to in para 4 of the agreed facts, is a letter addressed by the defendant to the plaintiff's attorneys which conveyed, so the defendant contends, an offer of settlement of the plaintiff's claim in accordance with the provisions of s 14(2)(b) of the Act. I shall hereafter refer to that annexure as 'the offer'. Reverting to the stated J case, the parties' formulation of the dispute is reflected as follows:

Combrink J

'1.

A The defendant contends that the effect of annexure SC1 was that prescription recommenced after the expiration of a period of 90 days after annexure SC1 was received by the plaintiff.

2.

The plaintiff contends that SC1 was not "an offer of settlement" as contemplated by s 14(2) of the Act.

3.

B Alternatively, and in the event of the Court finding that SC1 was an offer of settlement as contemplated by s 14(2) of the Act, the plaintiff contends that:

(a)

the failure by the defendant to object to the validity of plaintiff's claim within 60 days of receipt thereof constituted an acknowledgement of liability which had the effect of prescription commencing de novo after the expiration of 90 days from the date of SC1;

(b)

C by the use of the word "interrupted" in s 14(2) of the Act, the Legislature intended that the full period of prescription would commence to run de novo after the expiration of 90 days from the date of SC1.'

In the stated case the plaintiff summarised her contentions accordingly:

'1.

D The plaintiff contends that, upon a proper interpretation of s 14(1)(a) and (2) of the Act, prescription was interrupted on 26 February 1991 when the plaintiff lodged her claim for compensation.

2.

At no stage did the defendant deliver to the plaintiff either a notice to repudiate liability or a notice to convey an offer of settlement of the claim to the plaintiff or her representative.

3.

E Annexure SC1, which the defendant contends constitutes a notice conveying an offer of settlement of the claim, properly construed, is not a notice to convey an offer of settlement within the meaning of s 14(2)(b) of the Act as the said offer was not open for the requisite period contemplated in the Act, was not unrestricted, unconditional or unambiguous.

4.

Alternatively, prescription had been interrupted by the failure of F the defendant to object to the validity of plaintiff's claim and thereby acknowledging liability. Prescription accordingly runs de novo after the expiration of 90 days from the date of SC1.

5.

In any event, the word "interrupted" is a well known legal term having the specific meaning that prescription will commence to run de novo.

6.

G In the premises, the plaintiff contends that the service of her summons on the defendant was effected prior to the matter having prescribed and that the defendant's special plea should accordingly be dismissed...