Trans-African Insurance Co Ltd v Maluleka

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Schreiner JA, Reynolds JA, Brink JA and Beyers JA
• Judgment Date: 16 March 1956
• Citation: 1956 (2) SA 273 (A)
• Hearing Date: 08 March 1956
• Court: Appellate Division

Schreiner, J.A.:

The respondent, suing for herself and as mother and natural guardian of her five minor children, caused a summons to be G issued out of the Witwatersrand Local Division against the appellant on the 4th August, 1955, in which she claimed '(a) Payment of the sum of £2,002 in respect of damages suffered by plaintiffs as a result of the death of one Dick Maluleka, being the husband of' the respondent 'and the father of' the respondent's children. There were further claims for interest a tempore more and costs. The date of the service of the H summons does not appear, but it was at all events on or before the 12th August, on which date the respondent filed a petition for leave to bring the action in forma pauperis, in which petition she alleged inter alia (a) that on the 14th August 1953 the said Dick Maluleka sustained injuries as a result of a collision with a motor vehicle, T.P. 30681, from which injuries he died, and (b) that at the time of the collision the appellant was the insurer of the vehicle T.P. 30681 under the Motor

Schreiner JA

Vehicle Insurance Act, 29 of 1942, and was therefore liable to the respondent and her children in respect of any damage sustained by them.

On the 17th August the respondent gave notice of an application to be A made on the 30th August to amend the summons by adding, in substance, the allegations which I have mentioned as appearing in the petition. On the 18th August the appellant gave notice of an application, also to be made on the 30th August, for leave to cancel the summons under Rule 37 of the Transvaal Rules of Court, on the ground that it 'does not B indicate the cause of action on which the plaintiff relies'. On the 25th August the appellant, anxious it seems as to the technical correctness of its own procedure, gave notice of an application to amend its former application, so as to bring it more clearly within Rule 37.

PRICE, J., dismissed the application to cancel the summons and granted C the amendment sought by the present respondent. He granted leave to the appellant to appeal direct to this Court, the parties consenting, on condition that it paid the costs of the respondent

'whether the appeal is successful or not, and whatever the order may be as to the merits of the appeal.'

A feature of the matter, which explains why the appellant has been D anxious to have the summons cancelled and to resist its amendment, is that in terms of sec. 11 (2) of Act 29 of 1942 the right to claim compensation under the Act from a registered insurance company becomes prescribed on the expiration of two years from the date when the claim arose. Since Dick Maluleka died on the 14th August, 1953, the date of the collision, the two years expired on the 14th August, 1955, or within E a day of that date. It is unnecessary to fix the date more precisely.

Rule 37, under which the appellant's application was made, reads:

'When any proceeding in a cause on the part of one of the parties is irregular or improper, the opposite party shall be entitled, before taking any further steps, to apply for leave to cancel such proceeding upon a notice summoning the opposite party to show cause why such F proceeding shall not be set aside. The Court, or Judge in Chambers, shall make such order thereon as shall seem meet.'

In Foster v Carlis and Houthakker, 1924 T.P.D. 247, the Transvaal Provincial Division upheld on appeal the refusal of the Witwatersrand Local Division to cancel a notice of trial which was insufficient in terms of Rule 47, which...