Mutual and Federal Insurance Co Ltd v Kok

• Jurisdiction: South Africa
• Judge: Van Reenen CJ, Goldin JA and James JA
• Judgment Date: 12 October 1984
• Citation: 1985 (2) SA 225 (TkA)
• Hearing Date: 09 October 1984
• Court: Transkei Appellate Division

Van Reenen CJ:

The respondent had sued the appellant in terms of the Compulsory Motor Vehicle Insurance Act 56 of 1972 for damages which he had suffered as the result of the alleged negligence of the driver of a motor vehicle which had been insured with the appellant in terms of and for the purposes of the said Act.

B The particulars of the claim are not relevant to this judgment, except to the extent that the respondent had, in reply to a request for further particulars, stated that he was not injured in the course of his employment.

Despite this averment, the appellant raised a special plea in C bar on the following grounds:

"(b)

The defendant pleads that at the time the said collision occurred the plaintiff was an employee of Roadmix Construction (Pty) Ltd and was acting in the course of and within the scope of his duties as an employee of the said company.

(c)

The plaintiff was accordingly injured in circumstances D entitling him to compensation in terms of Act 30 of 1941.

(d)

The plaintiff has not complied with any of the provisions of s 8 of Act 30 of 1941 prior to the institution of these proceedings, and in the premises is disentitled from instituting these proceedings and the summons issued by the plaintiff on 4 December 1979 E is not capable of commencing proceedings against the defendant.

(e)

In the premises and by reason of the provisions of s 8 of Act 30 of 1941 the plaintiff's claim against the defendant is unenforceable."

Despite the inconsistency of this special plea with the respondent's particulars of claim, it was common cause at the hearing that (I quote from the judgment a quo):

F "that the plaintiff was a 'workman' as defined by the Act and that he was injured during the course of his employment entitling him to compensation in terms of the said Act. It is further common cause that the plaintiff did not comply with the provisions of s 8 (2) and 8 (5) of the Act."

It was also common cause that, although the respondent's case was founded upon the provisions of the Motor Vehicle Insurance G Act, the provisions of the Workmen's Compensation Act, in so far as they are relevant, were applicable. We are especially concerned with the application of s 8 (5) of that Act.

It was further common cause that the pleadings should be read as if reference had been made to Act 20 of 1977.

H In his amended particulars of claim the respondent claimed the following damages:

"(a) Hospital expenses	(Not known)
(b) Medical expenses (to date)	150,00
(c) Estimated future medical expenses	500,00
(d) Loss of earnings from 9 September 1977; to 29 September 1978	1 148,00
(e) Estimated future loss of earnings	11 616,00
(f) General damages for pain and suffering, permanent; disability, loss of amenities of life and disfigurement,; past, present and future	10 000,00
R23 414,00"

Van Reenen CJ

Although the special plea averred that the respondent had A failed to comply with any of the provisions of s 8 of the Act, it was common cause that the only grievance was non-compliance with the provisions of s 8 (5).

This subsection reads as follows:

"No proceedings in a court of law to recover damages against any person referred to in...