Multilateral Motor Vehicle Accidents Fund v Meyerowitz

• Jurisdiction: South Africa
• Judge: van Niekerk J, Ackermann J, Van Deventer J
• Judgment Date: 15 August 1994
• Docket Number: A203/94
• Hearing Date: 01 August 1994
• Court: Cape Provincial Division

Van Deventer J:

This is an appeal against a judgment of Williamson J, dismissing a special plea of prescription in an action instituted by the respondent against the appellant for the recovery of damages which the appellant was allegedly liable to pay by virtue of the provisions of the H Motor Vehicle Accidents Act 84 of 1986 and the regulations promulgated thereunder ('the Act' and 'the regulations').

As the accident in which the respondent's injuries were sustained was allegedly caused by an unidentified vehicle, the respondent needed the appellant's consent in terms of reg 8 to sue the appellant.

In terms of the Act, the prescriptive period of such a claim is two years I and nine months.

It was common cause at the hearing that the respondent's attorney had allowed his claim to prescribe before the appellant's consent to be sued had been requested.

In a replication to the special plea, respondent averred that appellant J had waived its right to rely on prescription.

Van Deventer J

A By pre-trial agreement between the parties, the Court a quo was requested to direct in terms of Rule 33(4) that the issue of waiver be determined separately. The learned Judge duly agreed and the hearing proceeded solely on the issue of waiver.

The Court was informed that neither party would have to lead evidence as all the material facts were embodied in documentation. By agreement a B bundle was handed in consisting of relevant correspondence between the parties and the Minister of Transport and of some inter-office memoranda and notes written by appellant's personnel and the Court was asked to assume that the contents of these documents would have been confirmed by the authors involved, had they testified.

The following is a condensation of facts and extracts from the contents of C the said bundle which seem to me to be relevant to the issue of waiver:

1.

On 22 May 1989, the appellant wrote a letter to respondent's attorneys stating:

'Your client's claim became prescribed on 6 March 1989. The Fund is closing its file.'

D (That the claim had become prescribed was common cause, as I stated before.)

2.

Following upon a request for 'condonation' of prescription, the respondent's attorneys were advised as follows by telefax from the appellant:

E 'Condonation of prescription of this claim can unfortunately not be considered as the regulations do not provide therefor.'

3.

This view was not accepted and on 7 July 1989 the respondent's attorneys addressed a letter to the Minister of Transport in which they explained that the prescriptive period had expired through the F fault of the attorney who had handled the matter. The gist of this letter was set out as follows in its last two paragraphs:

'It is respectfully submitted that it is within the scope and authority of the Minister's powers to direct that the Fund should not avail itself of the defence of prescription. It is furthermore respectfully submitted that, in the light of the circumstances set G out herein as read with the further facts and documentation contained or referred to in the aforesaid memorandum, this is a proper case for the Minister to exercise his discretion in favour of the claimant.

Any further information which the Minister may require to enable him to consider the matter will gladly be furnished.'

4.

Receipt of this letter was duly acknowledged and in due course the H respondent's attorneys received a letter dated 31 August 1989 from the Director-General of Transport which read as follows:

'I refer to your letter Mr John Simon dated 7 July 1989 addressed to the Minister of Transport Affairs and have to inform you that the MMF has been requested to grant permission itself to be sued by your client.'

5.

I Within a few days of receipt of the last-mentioned letter, a letter from the appellant dated 4 September 1989 and reading as follows was received by respondent:

'The above-mentioned claim has reference. Kindly note that permission to sue the MMF is hereby granted. Summons must be served on or before J 31 October 1989.'

Van Deventer J

6.

A This letter must have been received by respondent's attorneys at the latest on 7 September 1989 as they sent a copy of the letter to another legal firm...