Mlisane v South African Eagle Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Brand J
• Judgment Date: 30 September 1993
• Citation: 1996 (3) SA 36 (C)
• Docket Number: 16091/92
• Hearing Date: 21 September 1993
• Counsel: R R Horn SC (with him J Joubert) for the applicant (defendant). J R Whitehead for the respondent (plaintiff).
• Court: Cape Provincial Division

Brand J:

In this interlocutory application, the relief sought by the applicant ('defendant') is for the striking C out of certain paragraphs of the respondent's ('plaintiff's') particulars of claim.

From the plaintiff's particulars of claim it appears that her claim is based on the provisions of the agreement ('the agreement') which forms a schedule to the D Multilateral Motor Vehicle Accidents Fund Act 93 of 1989. This claim arises from a motor vehicle accident which occurred on 29 November 1990. There was only one vehicle involved in the accident. This vehicle was driven by Mr Dike Mlisane who was fatally injured in the accident and to whom reference will hereinafter be made as 'the deceased'. E

The plaintiff alleges that she and the deceased were partners in a customary union as defined in s 35 of the Black Administration Act 38 of 1927, and that three children, who are at present still minors, were born of this union. During the lifetime of the deceased, the plaintiff alleges, he provided maintenance and support for the plaintiff and their three minor children. The plaintiff seeks to hold the defendant, in its capacity F as the responsible appointed agent in terms of s 13 of the agreement, liable in terms of the agreement for the loss of maintenance and support which she and her three minor children suffered as a result of the death of the deceased.

G The defendant contends that subparas (a), (b), (c), (d) and (e) of para 5 of the plaintiff's particulars of claim should be struck out for being irrelevant. Paragraph 5 of the particulars of claim reads as follows:

'5. The accident was due solely to the negligence of the deceased and the owner of the vehicle (hereafter referred to as the owner) who were negligent in one or H more of the following respects:

(a)

he drove the motor vehicle at a speed excessive in the circumstances;

(b)

he failed to keep a proper look-out;

(c)

he failed to apply the brakes of the motor vehicle timeously or at all;

(d)

I he failed to have and keep the motor vehicle under proper control;

(e)

he failed to avoid the accident when by the exercise of reasonable care and skill he could and should have done so;

(f)

he drove the motor vehicle and the owner instructed, alternatively permitted, him to drive it whilst the tyres of the vehicle were in a defective condition and had no or inadequate tread.' J

Brand J

A The basis advanced on behalf of the defendant for its contention that the offending subparagraphs are irrelevant is, in essence, that they pertain exclusively to the negligence of the deceased himself whereas, in terms of the provisions of the agreement, the negligence of the deceased breadwinner himself does not give rise to any action for loss of support. The crisp legal question, which has thus far not been B raised pertinently in any reported decision is, therefore, whether the dependants of a breadwinner who has been killed as a result of his own negligence have a claim for loss of support against the Multilateral Motor Vehicle Accidents Fund ('the MMF') in terms of the agreement.

C Before I deal with the issue between the parties, two matters should be raised for the sake of completeness. First, it should be mentioned that the defendant originally filed an exception to the plaintiff's particulars of claim on the basis that insofar as the plaintiff relies on the negligence of the driver the particulars of claim do not disclose a cause of action. It was obviously then realised that an exception is not competent in that the D plaintiff also relies on the negligence of the owner to which there can be no objection in principle. The exception was then replaced by the present application to strike out those subparagraphs which relate exclusively to the negligence of the driver.

Secondly, it should be mentioned that it was not argued on behalf of the plaintiff that the offending subparagraphs should remain even if they are irrelevant. Otherwise E stated, it was not argued that the application should be refused for lack of prejudice on the part of the plaintiff. The issue is, therefore, simply whether the offending subparagraphs are irrelevant as is contended by the defendant.

This brings me to the crisp legal question around which the issue between the parties F revolves. This question should, in my view, be considered against the background of the following articles contained in the agreement:

'40. The MMF or its appointed agent, as the case may be, shall subject to the provisions of this agreement be obliged to compensate any person whomsoever (in this agreement called the third party) for any loss or damage G which the third party has suffered as a result of -

(a)

any bodily injury to himself;

(b)

the death of or any...