Ngcobo v Van Zyl and Another

• Jurisdiction: South Africa

Ngcobo v Van Zyl and Another
1977 (2) SA 303 (D)

1977 (2) SA p303

Citation	1977 (2) SA 303 (D)
Court	Durban and Coast Local Division
Judge	Leon J
Heard	December 2, 1976
Judgment	January 7, 1977

Flynote : Sleutelwoorde A

Insurance — Compulsory Motor Vehicle Insurance Act, 56 of 1972 — Third party's claim prescribed — Application for relief under sec. 24 (2) (a) — Effect of section — Summons not served timeously B — Defendants unable to furnish insurance token number and declaration of identity — Proof that vehicle insured only obtained after the expiry of the 90 day period — Neither third party nor her representatives to blame therefor — "Special circumstances" existing for summons not being served timeously — Relief granted.

Headnote : Kopnota

The effect of section 24 (2) (a) of the Compulsory Motor C Vehicle Insurance Act, 56 of 1972, is that the Court has no general discretion to come to an applicant's aid simply because that strikes it, if it does, as equitable. Its powers are circumscribed. The applicant cannot succeed unless he satisfies it on each of three factually associated but notionally distinct points. The first is that "special circumstances" were connected with his failure, as the case may be, to have complied with section 25 (1) before his claim was prescribed or D to have interrupted its prescription. The second is that he "could not reasonably have been expected" to comply by then with section 25 (1) or to interrupt prescription. The third, explaining the second with reference to the first and linking them causally, is that what produced the situation in which he "could not reasonably have been expected" to do so were the "special circumstances" themselves. In deciding whether section E 25 of the Act and the relevant regulations have been complied with the absence of prejudice to an insurance company is highly relevant. The absence of such prejudice might well justify the Court in concluding in a proper case that what the plaintiff did did not frustrate or materially impair the object of the relevant provisions. On the other hand, in an application under section 24 (2), it is for the applicant to satisfy the requirements of the section in the manner referred to above and the question of prejudice to an insurance company or the lack F of it does not arise.

In an application for relief under section 24 (2) (a) (ii) and (iii) of the Compulsory Motor Vehicle Insurance Act, 56 of 1972, it appeared that, although the M.V.A. 13 had been received before then, on the expiry of the two-year period the applicant had not known the insurance token number of the vehicle which had collided with her, and the first and second respondents, the insured driver and the insurance company concerned, respectively, had been unable to supply her with G this information; and that proof that the motor vehicle in question had been duly insured under the Act had only been received by the applicant's representatives after her claim had been prescribed, and after the further 90 days suspending prescription had expired - the root cause of the difficulty which had arisen in serving the summons timeously having been the inability to obtain the declaration of identity or the insurance token number, which had not been due to any fault on the part of the applicant or her advisers. A rule nisi having H been granted, on the return day,

Held, that, on the facts as a whole, the applicant could not reasonably have been expected to have served the summons timeously; that the existence of certain specified circumstances provided the reason therefor; and that such circumstances, considered cumulatively, were "special circumstances" within the meaning of the Act. Rule accordingly confirmed.

Case Information

Return day of a rule nisi. The facts appear from the reasons for judgment.

1977 (2) SA p304

R. S. Douglas, for the applicant.

P. C. Combrinck, for the second respondent.

Cur adv vult.

Postea (January 7). A

Judgment

Leon, J.:

This is the return day of a rule nisi in which the second respondent was called upon to show cause why leave B should not be given to the applicant to serve a summons on the second respondent, an insurance company, for damages arising out of a motor collision on 11 April 1974.

The application is one under sec. 24 (2) (a) (ii) and (iii) of Act 56 of 1972. There are certain allegations made on behalf of the applicant which have either not been admitted by the second respondent or in respect of which the second respondent has C stated that it has no knowledge thereof. However, Mr. Combrinck, who appeared on behalf of the second respondent, conceded at the hearing that the application should be decided upon the basis that the facts stated in the affidavits filed on behalf of the applicant were correct.

On 11 April 1974 the applicant, who was a pedestrian at the D time, was knocked down by a motor vehicle. Her claim for damages arising out of the collision became prescribed at midnight on 10 April 1976.

Sec. 24 (2) (a) provides that:

"If a third party's claim for compensation has become prescribed under sub-sec. (1) of this section and a court having jurisdiction in respect of such claim is satisfied, upon application by the third party concerned -

(i)

E where the claim became prescribed before compliance by the third party with the provisions of sec. 25 (1), that by reason of special circumstances he could not reasonably have been expected to comply with the said provisions before the date on which the claim became prescribed; or

(ii)

where the claim became prescribed after compliance by him with the said provisions, that by reason of special circumstances he could not reasonably have been expected to serve any process, by which the F running of prescription could have been interrupted, on the authorised insurer before that date; and

(iii)

that the authorised insurer is not prepared to waive its right to invoke the prescription,

the court may grant leave to the third party to comply with the said provisions and serve process in any action for enforcement of the claim on the authorised insurer in accordance with the provisions of sec. 25 (2) before a date determined by the court or, as the case may be, to serve such process on the authorised G insurer, before a date so determined."

Sec. 25 (2), to which these provisions refer, is that barring litigation to enforce sec. 21 against an "authorised insurer" which has not been supplied 90 days earlier with the formal claim for compensation required by sec. 25 (1). Sec. 24 (2) H (c), which must be read with sec. 24 (2) (a), reads:

"A plea of prescription in terms of sub-sec. (1) shall not be upheld in any action in which the relevant process was served on an authorised insurer by virtue of leave granted under this sub-section."

The applicant did not consult an attorney but consulted one David Straw of the firm Straw and Begemann to commence proceedings for the recovery of damages. The latter encountered difficulties in obtaining information as to the vehicle which had collided with the applicant. In reply to an enquiry addressed by him to the police on 24 March 1975, he was informed

1977 (2) SA p305

Leon J

that the police had no record of the accident. Later, however, the applicant obtained the registration number - ND 45702 - from the police and as a result the owner of that vehicle was traced by the licensing department. The first respondent is that person.

On 8 March 1976 Straw wrote to the first respondent referring A him to sec, 20 (2) of the Act and requesting that he produce the declaration of insurance relating to the vehicle that had been involved in the accident. In reply to that request the first respondent stated that he was unable to supply the declaration of insurance or the token B number although he had been...