SA Eagle Insurance Co Ltd v Bavuma

• Jurisdiction: South Africa

SA Eagle Insurance Co Ltd v Bavuma
1985 (3) SA 42 (A)

1985 (3) SA p42

Citation	1985 (3) SA 42 (A)
Court	Appellate Division
Judge	Corbett JA, Miller JA, Nicholas JA, Eloff AJA and Vivier AJA
Heard	March 8, 1985
Judgment	March 28, 1985

Flynote : Sleutelwoorde B

Statute — Interpretation of — Waiver of performance of — Statutory provision enacted for the special benefit of an individual or body — Can be waived by that individual or body provided no public interests involved — Maxim quilibet C potest renuntiare juri pro se introducto applicable — For individual intended to be benefited thereby to waive performance of the provision — Not open to another person not intended to be benefited to insist on observance of the provision — Provisions of s 8 (5) of Workmen's Compensation Act 30 of 1941 (prior to amendment by Act 29 of 1984) held not D to involve public interest — Nothing in the Act prohibiting Workmen's Compensation Commissioner from waiving compliance with s 8 (5).

Employment law — Workmen's compensation — Compliance with s 8 (5) of Act 30 of 1941 — Provisions of subsection (prior to its amendment by Act 29 of 1984) held not to involve public E interests — Nothing in the Act either expressly or by necessary implication prohibiting Commissioner from waiving compliance with the subsection.

Headnote : Kopnota

It is a well-established principle of our law that a statutory provision enacted for the special benefit of any individual or body may be waived by that individual or body, provided that no F public interests are involved. It makes no difference that the provision is couched in peremptory terms. This rule is expressed by the maxim quilibet potest renuntiare juri pro se introducto - anyone may renounce a law made for his special benefit. It is for the individual or body intended to be benefited by the statutory provision in question to waive its performance, and it is not open to another person (not intended to be benefited) to insist that the statutory provision be observed.

G Whatever the precise purpose of s 8 (5) of the Workmen's Compensation Act 30 of 1941, there can be no doubt that it was introduced solely for the Workmen's Compensation Commissioner's benefit. No public interests are involved; the subsection is not there for the public benefit, nor does it concern any principle of public policy. There is nothing in the Act which either expressly or by necessary implication prohibits the Commissioner from waiving compliance with the subsection (as it H was before its amendment by Act 29 of 1984). The provisions of s 8 (5) are therefore capable of being waived by the Commissioner.

The decision in the South Eastern Cape Local Division in Bavuma v SA Eagle Insurance Co Ltd allowing an amendment to the respondent's particulars of claim (the decision being noted in Bavuma v SA Eagle Insurance Co Ltd 1984 (2) SA 786 (SE) at 791D - E) confirmed, but for different reasons. I

Case Information

Appeal from a decision in the South Eastern Cape Local Division (SOLOMON J). The facts appear from the judgment of VIVIER AJA.

J J Nepgen SC for the appellant: The amendment should not have been allowed for the following reasons: The consent of the Commissioner, furnished after the close of pleadings, did not J amount to compliance with the provisions of s 8 (5) of Act 30 of 1941 and the amendment therefore

1985 (3) SA p43

sought to introduce an allegation that was incorrect in fact A and in law. The cause of action relied upon by the plaintiff had to subsist at the time the summons was issued and the plaintiff, who had no cause of action at such time by reason of the absence of the consent of the Commissioner, could not remedy the defect by relying on the subsequent granting of the Commissioner's consent. The question to be determined by the B Court a quo was not merely whether an amendment should be allowed alleging that the plaintiff was a "workman" and the collision an "accident" in terms of Act 30 of 1941. The sole reason for the amendment was to introduce an allegation that there had been compliance with the provisions of s 8 (5) of Act 30 of 1941. The essential question for determination by this C Court is whether the furnishing by the Commissioner of his consent to the institution of legal proceedings can constitute compliance with the relevant requirement of s 8 (5) of Act 30 of 1941 if such consent is only furnished after summons has been issued. In order to comply with the provisions of s 8 (5) of Act 30 of 1941 the consent of the Commissioner must be D obtained prior to the institution of the action. The reference to "any person referred to in ss (1)" is a person in whom a legal liability to pay damages is created by reason of the circumstances which caused an accident in respect of which compensation becomes payable. The amendment sought by the plaintiff contained an averment which was to the effect that E compensation had become payable to the plaintiff by reason of the collision. The present action is accordingly an action in a court of law referred to in s 8 (5) of Act 30 of 1941 and the consent of the Commissioner must have been obtained prior to the institution thereof. Phoenix Assurance Co Ltd v Kloppers 1952 (3) SA at 231A - B; Tyulu and Others v Southern Insurance Association Ltd 1974 (3) SA at 731E - F. In the circumstances F the obtaining of the Commissioner's consent after the institution of the action cannot constitute compliance with the provisions of s 8 (5) of Act 30 of 1941. The amendment should accordingly not have been allowed. The Court a quo erred in holding that it could allow the amendment in order to "complete a cause of action where no cause of action existed at the time G when the summons was issued". Even if it was correctly held that the Court had a discretion to allow such an amendment (which is not conceded) the averments contained in the notice of intention to amend did not have the effect of completing a cause of action where no cause of action existed at the time the summons was issued. If the prior consent of the Commissioner was required in order to complete the cause of H action, an allegation that such consent had been subsequently obtained could not and did not remedy the defect. The plaintiff is unable to and does not seek to allege that the prior consent of the Commissioner was obtained. The case of Barclays Bank International Ltd v African Diamond Exporters (Pty) Ltd (1) 1976 (1) SA 93, which was relied on by SOLOMON J, is clearly I disinguishable. The decision is wrong insofar as it conflicts with the decision of this Court in Mahomed v Nagdee 1952 (1) SA at 418H. By reason of what has been set out above, it would seem that the basis of the decision of SOLOMON J was that he considered that the consent of the Commissioner was not a condition precedent to the liability of the appellant. This can be the only basis for referring to the absence of any provision J in Act 56 of 1972 which requires the prior consent of the

1985 (3) SA p44

A Commissioner. The absence of any "suggestion" in Act 56 of 1972 that "notification" to the Commissioner is a condition precedent to any claim under that Act is irrelevant. Section 23 of Act 56 of 1972 provides that an authorised insurer shall not be obliged to compensate any person for any loss or damage for B which "neither the driver nor owner" of the insured vehicle would have been liable were it not for the provisions of s 27 of that Act. Notwithstanding the fact that Act 30 of 1941 was enacted before Act 29 of 1942, it has been held that its provisions had the effect of excluding a claim against a registered insurer where the plaintiff was employed by the driver of the insured vehicle who was also the owner thereof. Mphosi v Central Board for Co-operative Insurance Ltd 1974 (4) C SA 633. If it had been competent for the plaintiff to sue the driver of the insured vehicle in the present matter, such driver would have been able to rely on the provisions of s 8 (5) of Act 30 of 1941. Therefore nothing is to be gained by looking for some express provision in Act 56 of 1972 regarding D the consent of the Commissioner. SOLOMON J failed to have regard to the fact that the provisions of Act 30 of 1941 make "drastic inroads upon the common law rights of...