Marine and Trade Insurance Co Ltd v Reddinger

• Jurisdiction: South Africa
• Judge: Beyers ACJ, van Blerk JA, Ogilvie Thompson JA, Rumpfff JA and Wessels AJ
• Judgment Date: 03 March 1966
• Citation: 1966 (2) SA 407 (A)
• Hearing Date: 28 February 1966
• Court: Appellate Division

Wessels, J.A.:

This is an appeal (with the leave of the Court a quo) against a judgment of the Natal Provincial Division (FRIEDMAN, J.) dismissing with costs a special plea filed by the appellant in answer to a combined summons sued out by the respondent for the purpose of enforcing a claim for damages in terms of the provisions of the Motor

Wessels JA

Vehicle Insurance Act, 29 of 1942, as amended. I will hereafter refer to the appellant as the defendant and the respondent as the plaintiff.

The combined summons was issued on 29th January, 1965, and served on the A defendant on 1st February, 1965. It is averred in the annexure thereto that defendant was at all material times the insurer under the aforementioned Motor Vehicle Insurance Act of a certain motor vehicle which collided with the plaintiff on 2nd February, 1963, as a result of the negligence of the driver thereof, that the plaintiff sustained bodily injury as a result of the collision and that the defendant was B liable to compensate him for the damages thus suffered by him, being the amount of R5,310.90.

Although the relevant document is not included in the record on appeal, it appears from the judgment of FRIEDMAN, J., that the defendant entered an appearance to defend the action on 11th February, 1965. Thereafter, C on 26th February, 1965, the defendant addressed a request for further particulars to the plaintiff in terms of the provisions of Rule 21 (1) of the Uniform Rules, as follows:

'Please take notice that, in terms of Rule 21 (1) of the Rules of the above Honourable Court, plaintiff is hereby called upon to deliver the following particulars of his claim as set out in the annexure to his summons to enable the defendant to plead except or make application to strike out:

1.

Did plaintiff send or deliver to defendant a claim in terms of sec. D 11 bis of Act 29 of 1942, as amended, in relation to the damages alleged to have been suffered by him? If so on what date was such claim sent or delivered?

2.

In the event of such a claim having been submitted by the plaintiff a copy thereof is required.'

The plaintiff replied thereto on 18th March, 1965, as follows:

'Please take notice that in terms of Rule 21 (2) (a) the plaintiff E hereby furnishes the following further particulars to the combined summons in answer to the defendant's request dated 26th February, 1965:

1.

Yes. Under registered cover posted by the plaintiff's attorneys on 22nd January, 1965, and delivered by the postal authorities to the defendant on 25th January, 1965. Summons will be re-served on defendant before enforcing plaintiff's said claim after expiration of the 60 days referred to in sec. 11 bis (2) of Act 29 of 1942.

2.

F Such copy is already in possession of the defendant having been duly delivered to the defendant by the postal authorities on 25th January, 1965.'

On 29th March, 1965, the combined summons was once more served on the defendant by the Deputy Sheriff of Johannesburg.

On 11th May, 1965, the defendant caused a pleading to be filed under the following heading:

'Defendant's plea to plaintiff's summons dated 29th January, 1965.'

G This pleading embodied both a so-called 'special plea' and a plea over to the merits. In so far as this appeal is concerned it is only necessary to set out the terms of the special plea, (as amended at the hearing of the matter) as follows:

'Special plea.

H Defendant pleads in abatement as follows:

1.

The claim for compensation required by sec. 11 bis (1) of Act 29 of 1942, as amended to be sent to the defendant in respect of the relief claimed by the plaintiff in this action was sent by plaintiff on 22nd January, 1965.

2.

These proceedings were commenced with a summons served upon the defendant on 1st February, 1965, i.e. before the expiration of a period of sixty days from 22nd January, 1965.

3.

In the premises the plaintiff's said claim for compensation is by virtue of the provisions of sec. 11 bis (2) of Act 29 of 1942, as amended, not enforceable in these proceedings.

Wherefore defendant prays that plaintiff's claim be dismissed with costs.'

Wessels JA

On 26th May, 1965, the plaintiff replicated to the special plea as follows:

'1.

The claim for compensation required by sec. 11 bis (i) of Act 29 of 1942, as amended, was despatched by registered post on A 22nd January, 1965, and delivered to defendant by the postal authorities on 25th January. 1965.

2.

The said summons was again served on defendant on 29th March, 1965, which was after the expiration of the sixty days required by sec. 11 bis (2) of Act 29 of 1942 as amended.

3.

Plaintiff consequently denies that plaintiff's said claim for compensation is not enforceable in these proceedings.

Wherefore plaintiff persists in...