Sikwe v SA Mutual Fire & General Insurance Co Ltd

JurisdictionSouth Africa
JudgeKirk-Cohen AJ
Judgment Date25 March 1977
Citation1977 (3) SA 438 (W)
Hearing Date04 March 1977
CourtWitwatersrand Local Division

Sikwe v SA Mutual Fire & General Insurance Co Ltd
1977 (3) SA 438 (W)

1977 (3) SA p438


Citation

1977 (3) SA 438 (W)

Court

Witwatersrand Local Division

Judge

Kirk-Cohen AJ

Heard

March 4, 1977

Judgment

March 25, 1977

Flynote : Sleutelwoorde D

Practice — Applications and motions — Application made under Rule of Court 6 (12) as a matter or urgency — What founding affidavit must contain.

E Husband and wife — Action by wife married in community of property unassisted by her husband — Locus standi granted to wife under sec. 2 (6) of Act 37 of 1953 — Scope of — Includes rights to take all procedural steps incidental to the recovery of compensation under Act 56 of 1972.

Insurance — Compulsory Motor Vehicle Insurance Act, 56 of F 1972 — Application for relief under sec. 24 (2) (a) (i) of Act — M.V.A. form filed not complying with regulations — Failure to file one which did timeously in order to comply with sec. 25 (i) of Act — Applicant entitled to claim relief sought.

Headnote : Kopnota

An applicant who wishes to rely on the procedure provided for G in Rule of Court 6 (12) must set out sufficient facts in the founding affidavit to enable the Court to decide whether urgent relief should be granted. Specific averments of urgency must be made and facts upon which such averments are based must be set out in the affidavit where it is not otherwise apparent that the matter is urgent. It does not follow that an application is necessarily defective if the form referred to in the Rule is not strictly adhered to. It is the substance of the affidavit, and not its form, which will weigh with the Court; if an H affidavit sets out facts upon which a Court can decide that an applicant is entitled to relief in terms of the sub-rule, the Court will entertain the application. If the only reasonable inference from the facts set out in the affidavit is that the matter is one of urgency, then an applicant will have complied with the requirements of the sub-rule, even though he does not make a specific averment that it is urgent.

As section 2 (6) of Act 37 of 1953 confers on a woman married in community of property locus standi to invoke the provisions of Act 56 of 1972, this includes the right to take all procedural steps incidental to the recovery of compensation under that Act.

In an application under section 24 (2) (a) (i) of the Compulsory Motor Vehicle Insurance Act, 56 of 1972, it appeared that the M.V.A. 13 form sent to the respondent within

1977 (3) SA p439

the prescribed two year period was not filled in by the medical practitioner who had treated her: she stated that as soon as such report became available it would be delivered to the respondent. The respondent had refused to waive its right to invoke prescription.

Held, as the applicant's claim had become prescribed before A compliance with section 25 (1), that she was entitled to apply for relief under section 24 (2) (a) (i).

Case Information

Urgent application for relief under sec. 24 (2) (a) (i) of Act 56 of 1972. The facts appear from the reasons for judgment.

E. Zar, for the applicant.

H. Slomowitz, for the respondent.

Cur. adv. vult. B

Postea (March 25).

Judgment

Kirk-Cohen, A.J.:

This is an urgent application in which the applicant seeks relief in terms of the provisions of sec. 24 (2) (a) (i) of Act 56 of 1972 which provides:

"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 D application by the third party concerned:

(i)

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)

............; and

(iii)

that the authorised insurer is not prepared to waive E its rights 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..."

Sec. 25 (1) provides that a plaintiff, prior to the institution of action, must deliver to the authorised insurer a

"claim for compensation... set out in the prescribed manner on a prescribed form which shall include provision for a F medical report or reports in regard to... the nature and treatment of the bodily injury..."

The prescribed form is known as the M.V.A. 13 form.

I summarise the relevant facts set out in the application. The applicant alleges that she is a woman married in community of property; on or about 6 December 1974 she was a passenger in a G motor vehicle which was involved in a collision with another motor vehicle; the collision was due entirely to the negligence of the driver of the latter vehicle which was duly insured in terms of the provisions of Act 56 of 1972 with the respondent; the respondent is subject to the jurisdiction of this Court; as a result of the collision the applicant suffered bodily injuries and damages which she is entitled to recover from the H respondent. After the collision, the applicant was treated in the Carolina Hospital by a medical practitioner who lives in that town. Although the applicant's attorney requested that medical practitioner to complete a medical report for the purposes of the M.V.A. 13 form, she did not obtain one from him prior to the expiry of the two year prescriptive period referred to in sec. 24 (1) of the Act. Various attempts to obtain a report from him were made both prior to and after the lapse of the two years prescriptive period referred to in sec. 24 (1), but

1977 (3) SA p440

Kirk-Cohen AJ

it has not yet been received. However, the applicant's attorney requested a medical specialist, practising in Johannesburg, to examine the applicant and he did so on 8 November 1976; this A specialist completed a medical report on an M.V.A. 13 form which was duly completed by the applicant as well and it was delivered to the respondent on 18 November 1976. In a covering letter the applicant's attorney informed the respondent that no medical report from the medical practitioner who treated the applicant in Carolina was available but, immediately it was received, it would be delivered to the respondent.

On 26 November 1976 the...

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19 practice notes
  • Cekeshe and Others v Premier, Eastern Cape, and Others
    • South Africa
    • Invalid date
    ...applied Scheibe v Rustenburg Liquor Licensing Board 1948 (3) SA 154 (T): applied Sikwe v SA Mutual Fire and General Insurance Co Ltd 1977 (3) SA 438 (W): dictum at 440H applied South African Allied Workers' Union and Others v De Klerk NO and Others 1990 (3) SA 425 (E): dictum at 436E--I app......
  • Guardian National Insurance Co Ltd v Van der Westhuizen
    • South Africa
    • Invalid date
    ...SA 673 (T); Zwane v H Commercial Union Assurance Co of SA Ltd 1975 (4) SA 492 (W); Sikwe v SA Mutual Fire & General Insurance Co Ltd 1977 (3) SA 438 (W); Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA 430 (A); AA Mutual Insurance Association Ltd v Gcanga 1980 (1) SA 858 (A); Shi......
  • Minister of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd and Others
    • South Africa
    • Invalid date
    ...(4) SA 524 (C): applied SA Fabrics Ltd v Millman NO 1972 (4) SA 592 (A): applied Sikwe v SA Mutual Fire and General Insurance Co Ltd 1977 (3) SA 438 (W): referred to B 20th Century Fox Film Corporation and Others v Playboy Films (Pty) Ltd and Another 1978 (3) SA 202 (W): dictum at 203C - D ......
  • Thugwana v Padongelukfonds
    • South Africa
    • Invalid date
    ...to Road Accident Fund v Thugwana 2004 (3) SA 169 (HHA): toegepas/applied Sikwe v SA Mutual Fire & General Insurance Co Ltd 1977 (3) SA 438 (W): na verwys/referred Thugwana v Padongelukfonds 2003 (1) SA 310 (T): na verwys/referred to G Viljoen en 'n Ander v AA Onderlinge Assuransie-Assosiasi......
  • Request a trial to view additional results
19 cases
  • Cekeshe and Others v Premier, Eastern Cape, and Others
    • South Africa
    • Invalid date
    ...applied Scheibe v Rustenburg Liquor Licensing Board 1948 (3) SA 154 (T): applied Sikwe v SA Mutual Fire and General Insurance Co Ltd 1977 (3) SA 438 (W): dictum at 440H applied South African Allied Workers' Union and Others v De Klerk NO and Others 1990 (3) SA 425 (E): dictum at 436E--I app......
  • Guardian National Insurance Co Ltd v Van der Westhuizen
    • South Africa
    • Invalid date
    ...SA 673 (T); Zwane v H Commercial Union Assurance Co of SA Ltd 1975 (4) SA 492 (W); Sikwe v SA Mutual Fire & General Insurance Co Ltd 1977 (3) SA 438 (W); Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA 430 (A); AA Mutual Insurance Association Ltd v Gcanga 1980 (1) SA 858 (A); Shi......
  • Minister of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd and Others
    • South Africa
    • Invalid date
    ...(4) SA 524 (C): applied SA Fabrics Ltd v Millman NO 1972 (4) SA 592 (A): applied Sikwe v SA Mutual Fire and General Insurance Co Ltd 1977 (3) SA 438 (W): referred to B 20th Century Fox Film Corporation and Others v Playboy Films (Pty) Ltd and Another 1978 (3) SA 202 (W): dictum at 203C - D ......
  • Thugwana v Padongelukfonds
    • South Africa
    • Invalid date
    ...to Road Accident Fund v Thugwana 2004 (3) SA 169 (HHA): toegepas/applied Sikwe v SA Mutual Fire & General Insurance Co Ltd 1977 (3) SA 438 (W): na verwys/referred Thugwana v Padongelukfonds 2003 (1) SA 310 (T): na verwys/referred to G Viljoen en 'n Ander v AA Onderlinge Assuransie-Assosiasi......
  • Request a trial to view additional results

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