Road Accident Fund v Mothupi

• Jurisdiction: South Africa
• Citation: 2000 (4) SA 38 (SCA)

Road Accident Fund v Mothupi
2000 (4) SA 38 (SCA)

2000 (4) SA p38

Citation	2000 (4) SA 38 (SCA)
Case No	518/98
Court	Supreme Court of Appeal
Judge	Nienaber JA, Marais JA, Olivier JA, Plewman JA, Farlam AJA
Heard	May 15, 2000
Judgment	May 29, 2000
Counsel	J O' D Williams for the appellant.; W P N Sceales SC for the respondent.

Flynote : Sleutelwoorde B

Appeal — Generally — Amendment of pleading on appeal — To introduce new issues — Party not permitted to raise new issue on appeal, if to do so unfair to opponent — Unfairness existing if new issue not fully canvassed or investigated at trial — Amendment in that event to be refused.

Appeal — Generally — New point raised on appeal for first time — Party not permitted to raise new point on appeal, if to do so unfair to opponent — Unfairness existing if new point not fully canvassed or investigated at trial.

Estoppel — By representation — Representation — By conduct — Test for — Test C being impression created by conduct of party sought to be estopped on reasonable person in position of other party (representee).

Prescription — Extinctive prescription — Interruption of — By express or tacit acknowledgment of liability by debtor — Prescription Act 68 of 1969, s 14(1) — Such acknowledgment to occur at specific time so that D moment at which prescription commencing afresh determinable — Mere impression of acknowledgment, not consisting in single act but arising from inaction over prolonged period, not capable of interrupting prescription.

Prescription — Extinctive prescription — Interruption of — By express or tacit acknowledgment of liability by debtor — Prescription Act 68 of 1969, s 14(1) — Acknowledgment of part, but not all, of claimant's E cause of action — Such amounting merely to acknowledgment of potential liability — Acknowledgment of liability as contemplated in s 14(1) to cover at least every element of debt and exclude every defence as to its existence — Road Accident Fund, established in terms of Multilateral Motor Vehicles Fund Act 93 of 1989, admitting negligence of insured driver, but engaging in correspondence with plaintiff about F quantum of claim with view to settlement — Plaintiff's claim prescribing in terms of Act before settlement reached as to quantum — Quantum thus remaining contentious issue — Fund's admission of negligence not constituting acknowledgment of liability as contemplated in s 14(1).

Waiver — Of right to rely on prescription — Tacit waiver — Question is whether conduct of party, alleged to have waived right to rely on waiver, consistent only with intention not to raise defence of prescription — Admission by defendant of aspect of claimant's cause of action — Such admission consistent with intention to litigate about other aspects of cause of action, and thus not consistent only with intention not to raise defence of prescription — Road Accident Fund, established in terms of Multilateral Motor Vehicles Fund Act 93 of 1989, not disputing negligence of insured driver, but engaging in correspondence with plaintiff about quantum of claim with view to settlement — Plaintiff's claim prescribing in terms of Act before settlement reached as to quantum — Fund's admission of negligence not consistent only with intention not to raise prescription, and thus not constituting tacit waiver of right to rely on prescription.

Waiver — Of statutory rights — Validity of — When public interest not G involved — Statutory provision enacted for special benefit of individual or body capable of being waived, if no public interest involved — Fact that provision couched in peremptory terms not affecting such waiver.

Waiver — Tacit waiver — Intention to waive — Test for — Test to determine H intention to waive objective — This meaning (1) intention judged by its outward manifestations, (2) uncommunicated mental reservations having no legal relevance, (3) outward manifestations judged from perspective of reasonable man in other party's position — Outward manifestations of waiver being conduct from which intention to waive inferred, including inaction or silence when duty to act or speak existing — Conduct from I which waiver inferred to be unequivocal, ie consistent with no other hypothesis than that intention to waive existing.

Waiver — What constitutes — Generally — Waiver a matter of intention and starting point of enquiry is intention of party said to have waived — Test to determine intention to waive objective — This meaning (1) intention judged by its outward manifestations, (2) uncommunicated mental reservations having no legal relevance, (3) outward manifestations judged from perspective of reasonable man in other party's position — Outward manifestations of waiver are words, or other form of conduct from which intention to waive inferred — Conduct from which waiver inferred to be unequivocal, ie consistent with no other hypothesis than that intention to waive existing.

Headnote : Kopnota

Articles 55 and 57 of the Agreement, which forms a Schedule to the Multilateral Motor Vehicles Fund Act 93 of 1989 (the Act), in effect provide that a claim against the Road Accident Fund (the Fund) becomes prescribed after three J

2000 (4) SA p39

years. Prescription is interrupted by the lodging of a claim in terms of art 62, however, and, if prescription is A so interrupted, the claim does not become prescribed before the expiry of five years from the date on which it arose. On 3 August 1991 the respondent (the plaintiff in the Court below) was injured in a motor vehicle accident. Two years later, on 3 August 1993, her attorneys (MNM) lodged a claim on her behalf against the predecessor of the Fund's statutory successor, Santam. In the result the prescriptive B period relevant to her claim was five years, so that the claim was due to expire on 3 August 1996. The respondent's claim was allocated for processing to one V, at the time an employee of Santam and thereafter of the Fund. At all relevant times V handled the claim. After the claim had been lodged, protracted correspondence ensued between MNM and V. It became apparent that V did not seriously dispute that the driver of the insured vehicle had been negligent and that the C only issue was the quantum of the respondent's claim. However, on no fewer than six occasions V found it necessary to request information from MNM in order to assess the respondent's claim. MNM were not able to respond to such enquiries promptly, so that the finalisation of the matter was delayed. V's aforesaid queries to MNM were bona fide and not deliberately contrived to cause the D plaintiff to delay instituting action against the Fund. After MNM had furnished information in response to the last of V's requests, on 18 September 1996, V realised that the appellant's claim had become prescribed. He advised MNM accordingly. The appellant thereafter instituted action against the Fund. The Fund, while admitting the negligence of the insured driver, entered a special plea of prescription. In her replication the respondent challenged this E plea. Two issues were identified, on the basis of the appellant's replication, which the trial Court was requested to determine separately in terms of Rule 33(4), namely (a) whether the Fund's reliance on prescription was constitutional and (b) whether the Fund had waived its right to rely on prescription. The trial Court found in favour of the respondent on the second of F these issues and, accordingly, did not consider the constitutional question. Against this judgment the Fund appealed. On appeal the respondent sought to broaden her responses to the special plea of prescription by substituting an amended replication, in which the further alternative of estoppel was introduced. Finally, during the course of argument on appeal, the respondent submitted that prescription had been interrupted by the Fund's acknowledgment of G liability, as contemplated in s 14(1) of the Prescription Act 68 of 1969. In the result, four issues were raised before the Court on appeal, viz (i) the alleged waiver by the Fund of its right to rely on prescription; (ii) the amendment of the respondent's replication to introduce the question of estoppel; (iii) interruption of prescription by acknowledgment of liability; and (iv) constitutional unfairness. H

Waiver of the right to rely on prescription

Held, that the right said to have been waived in casu was a statutory provision specifically accorded to the Fund to avert claims which were out of time. A statutory provision enacted for the special benefit of any individual or body might be waived by that individual or body, provided that no public interests I are involved. It made no difference that the provision was couched in peremptory terms. (Paragraph [15] at 49F/G.)

The dictum in SA Eagle Insurance Co Ltd v Bavuma 1985 (3) SA 42 (A) at 49G - H applied.

Held, further, that waiver was first and foremost a matter of intention. Whether it was the waiver of a right or a remedy, a privilege or power, an interest or J

2000 (4) SA p40

benefit, and whether in unilateral A or bilateral form, the starting point invariably was the will of the party said to have waived it. The test to determine intention to waive had been said to be objective. That meant, firstly, that the intention to waive, like intention generally, was adjudged by its outward manifestations; secondly, that mental reservations, not communicated, B were of no legal consequence; and, thirdly, that the outward manifestations of intention were adjudged from the perspective of the other party concerned, ie from the perspective of the latter's notional alter ego, the reasonable person standing in his shoes. The outward manifestations of intention could consist of words (ie express waiver) or of some other form of conduct from which the intention to...