Road Accident Fund v Mothupi

• Jurisdiction: South Africa
• Judge: Nienaber JA, Marais JA, Olivier JA, Plewman JA, Farlam AJA
• Judgment Date: 29 May 2000
• Citation: 2000 (4) SA 38 (SCA)
• Docket Number: 518/98
• Hearing Date: 15 May 2000
• Counsel: J O' D Williams for the appellant. W P N Sceales SC for the respondent.
• Court: Supreme Court of Appeal

Nienaber JA:

[1] On 3 August 1991 the respondent, plaintiff in the Court F below, was a passenger in a motor vehicle. The vehicle was involved in a collision with another vehicle. She was severely injured. So were some of the other passengers. Two years later, on 3 August 1993, her attorneys lodged a claim form on her behalf against the then appointed statutory third party insurer of the other vehicle involved G in the accident, Santam Insurance Company (Santam). Five and a half years after the collision, during February 1997, summons was served on the present defendant, now the appellant (the Fund), the statutory successor to Santam. The prescriptive period relevant to this claim is five years calculated from the date upon which the claim arose (art 57 of the Agreement which forms a Schedule to the Multilateral Motor H Vehicle Accidents Fund Act 93 of 1989 (the Act)). The sole issue in these proceedings is whether the plaintiff's claim, admittedly out of time, had nevertheless not prescribed. The Court below, MacArthur J sitting in the Transvaal Provincial Division, held that the Fund had impliedly waived reliance on prescription and accordingly dismissed its special plea of prescription with costs. This is an appeal, leave I having been refused by the Court a quo but granted to the Fund on petition, against that order.

[2] Articles 55 and 57 of the Schedule referred to earlier must be read conjointly.

'What arts 55 to 57 in effect state, is that such a claim becomes prescribed J

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within three years; prescription is "interrupted" by the lodging of a claim in terms of art 62; if interrupted, the claim A shall not become prescribed before the expiry of a period of five years from the date on which the claim arose.'

(Mbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA) at 720D - E.) This was not the position as at the time of the collision. As the Act then stood the claim form had to be lodged within two years (not three) and the claim would only prescribe 90 days B after the statutory third party insurer had either formally repudiated the claim or made an offer of settlement by registered post. Even if a claimant had failed either to lodge his or her claim within the two year period or sue within the 90 days period, he or she could still apply for condonation if there were 'special circumstances' which rendered it not unreasonable for the claimant not to have lodged or C sued within the prescribed periods (art 57 prior to the amendment of the Act). The Act was amended by Proc 102 of 1991 with effect from 1 November 1991, which was after the collision but before the action was eventually instituted. In accordance with Swanepoel v Johannesburg City Council; President Insurance Co Ltd v Kruger 1994 (3) SA 789 (A) the amended provisions apply to the plaintiff's D claim. In terms of the amended provisions a claimant was granted a more generous period of five years within which to sue - provided that the claim form had otherwise been lodged within the three year period - but on the other hand art 58 which previously allowed for condonation on account of 'special circumstances' was repealed. The clear E legislative implication is that a claimant who failed to proceed regularly within the five year period would no longer be able to approach a court for condonation even if the circumstances were special (Swanepoel's case at 796B - F).

[3] The Fund pleaded prescription and the plaintiff replicated F

'that the invocation by the defendant of art 57 constitutes an invasion of her constitutional rights enshrined in s 33, alternatively s 34 of the Constitution of the Republic of South Africa Act 108 of 1996'.

In the alternative it was pleaded that the Fund had 'waived any right to rely upon the provisions of the said art 57'. G

[4] At a pre-trial conference it was agreed that only two issues would be submitted to the Court to be disposed of in advance, namely

'5.1

of die verweerder se beroep op verjaring grondwetlik is; en

5.2

of verweerder afstand gedoen het van die reg om hom op verjaring te beroep.' H

It was also agreed that the plaintiff accepted the onus in respect of both issues.

[5] The Court a quo thereupon made an appropriate order in terms of Rule 33(4) of the Rules of Court and, having heard evidence, it upheld the plaintiff's contention that the Fund had I impliedly waived reliance on a defence of prescription. The constitutional issue was accordingly not considered.

[6] At the hearing of the appeal the plaintiff sought to broaden her responses to the special plea of prescription by substituting an amended J

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replication in which a further alternative of estoppel was A introduced. The application for the amendment was opposed by the Fund on the grounds, inter alia, that it ignored the terms of the pre-trial agreement and opened up factual issues not pertinently or adequately explored in the evidence. I shall return to the terms of the amendment later in this judgment when dealing with the issue of estoppel. B

[7] The main witnesses for the plaintiff were her attorneys, Mr and Mrs Mahlase, practising in partnership in Pietersburg under the name Mahlase, Nonyane-Mahlase (MNM). MNM submitted the plaintiff's claim to Santam. Santam was the 'appointed agent' in terms of the Act dealing with the third party claims arising from the collision in which the plaintiff was injured. The official to whom the file was allocated C was a certain Mr Van Schalkwyk. He handled the claim throughout, initially as an employee of Santam, latterly as an employee and legal officer of the Fund. He testified on behalf of the Fund.

[8] MNM experienced enormous practical difficulties in communicating with the plaintiff and hence in processing her claim. The D plaintiff lived in a remote area of the Northern Province and moved about amongst her relatives. Mrs Mahlase, asked to explain some of the delays in MNM's response to letters addressed to it by Van Schalkwyk, testified as follows:

'Can you tell the Court what the reason was for that? - The plaintiff lives in a certain village next to Ellisras and it is quite a E distance travelling there and there is no other means of communication. There are no telephones, they do not have postboxes where you can perhaps write a letter to say come to the office or whatever or I will be coming to your place. The only way of seeing the client was to drive to client's place. And sometimes . . . (intervene).

Court: And this is near Ellisras you say? - It is near Ellisras and we are in Pietersburg. And sometimes when you get there F you find that the client is not there, maybe she has gone to some of the relatives to ask for money, food for herself and her child. So I had to leave a message to say, please, should she come tell her to stay put until I come. It used to happen that sometimes when we drive there for the second time they tell us, no she has not yet arrived. So we have to go back like that. Sometimes when we make appointments with the doctors, for instance Dr Ledwaba, we go there to fetch client, the G plaintiff, we find that she is not there, we have to cancel the appointment again. And those were the causes of the delays.'

[9] The merits of the plaintiff's claim, that is to say, the negligence of the driver of the insured vehicle, one Petrus Lekgwabe (also referred to as 'the insured driver'), was not seriously in H dispute. Van Schalkwyk never requested specific information about the circumstances of the collision, although he did requisition the record of the criminal trial against Lekgwabe, who was convicted of culpable homicide. On no less than six separate occasions, although not requiring the Fund formally to concede the so-called merits, MNM pointedly demanded that it should state what 'the Fund's attitude I was' to the plaintiff's claim. Van Schalkwyk, in his response, invariably deflected the inquiry by asking for further information relating to the quantification of the plaintiff's claim although it was never suggested that any of his queries addressed to MNM were either irrelevant or deliberately contrived to cause the plaintiff to delay instituting action. Counsel for the Fund made much of the point that the J

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merits had never formally or expressly been conceded by the Fund. Even so, it is, I think, fair to say that the Fund was never A intent on contesting the claim on the ground that Lekgwabe was not negligent. Van Schalkwyk under cross-examination conceded as much. He said:

'En sal u met my saamstem dat dit die indruk kon geskep het dat u, wat betref die meriete van die aangeleentheid, die nalatigheid aan enige van die kante toegegee het? - Dit kon dalk die indruk skep dat, by die prokureur wat die eis ingedien het, dat die meriete nie meer in B dispuut is nie. Alhoewel op daardie stadium was dit nog nie formeel toegegee nie.'

Ultimately, in its plea over on the merits, Lekgwabe's negligence was expressly conceded by the Fund. But, of course, that was not the end of the matter, since the inquiry is not whether the Fund waived a C defence on the merits; it is whether the Fund waived a potential defence of prescription. I return to this issue in greater detail later in this judgment.

[10] According to Van Schalkwyk his mind was not specifically attuned to prescription. He dealt with close to a thousand different matters at any one time, so he explained, and the prescriptive periods in respect of each of these matters were never diarised by him in the D portfolio of claims which he administered. He dealt with each matter only when it was necessary to do so, on receipt of a communication from claimants or their legal representatives. His attitude, as he explained under cross-examination, was as...