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[2014] ZASCA 55
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Pithey v Road Accident Fund (319/13) [2014] ZASCA 55; 2014 (4) SA 112 (SCA); [2014] 3 All SA 324 (SCA) (16 April 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 319/13
Reportable
In
the matter between:
JOHANNA
CHRISTINA
PITHEY
..............................................................................
APPELLANT
and
ROAD
ACCIDENT
FUND
.........................................................................................
RESPONDENT
Neutral
citation:
Pithey v Road Accident
Fund
(319/13)
[2014] ZASCA 55
(16 April
2014)
Coram:
Navsa, Theron and Petse JJA and Swain and Legodi
AJJA
Heard:
13 March 2014
Delivered:
16 April 2014
Summary:
Motor
vehicle accident ─ claim against the Road Accident Fund ─
adequacy of information provided in claim form as read
with
supporting documentation ─ whilst crucial to properly identify
whether claim under s 17(1)(a) or (b) provision of contradictory
information not invalidating claim where the category of the claim
can still be determined.
ORDER
On
appeal from:
North
Gauteng High Court, Pretoria (Bertelsmann J, Preller and Mabuse JJ
concurring, sitting as court of appeal):
1
The appeal is upheld with costs.
2
The order of the Full Court is set aside and in its place is
substituted the following:
‘
The
appeal succeeds with costs. The order of Sapire AJ is set aside. In
its place is substituted the following order:
The
special plea is dismissed with costs.’
JUDGMENT
Petse
JA (Navsa and Theron JJA and Swain and Legodi AJJA concurring):
[1]
The issue arising in this appeal is whether a claim for compensation
lodged with the Road Accident Fund (Fund) established in
terms of the
Road Accident Fund Act 56 of 1996 (the Act) is rendered invalid
because the claim form apparently conveys that it
is a claim under s
17(1)
(a)
of the Act whereas it is evident from the accompanying documents that
such a claim is in terms of s 17(1)
(b)
of the Act. This issue arises against the following backdrop.
[2]
The appellant, Ms Johanna Christina Pithey, instituted an action
against the Fund in the North Gauteng High Court, Johannesburg,
for
damages she suffered as a result of a motor vehicle collision which
occurred on 29 November 2004. The appellant alleged in
her
particulars of claim that on 29 November 2004 on the N12 national
road between Westonaria and Alberton a collision occurred
between a
motor vehicle of which she was the driver and a truck driven by a Mr
M Ntshangase. She further alleged that the sole
cause of the said
collision was the negligence, in the respects alleged in her
particulars of claim, of the driver of an unidentified
blue minibus
which was itself not directly involved in the collision. The
appellant was unable to establish the identity of either
the owner or
the driver of the blue minibus at the material time. This was thus a
claim for compensation in terms of s 17(1)(
b
) of the Act, the
relevant parts of which read as follows:
‘
17
Liability of Fund and agents
(1) The Fund or an
agent shall─
(a)
.
. .;
(b)
subject
to any regulation made under section 26, in the case of a claim for
compensation under this section arising from the driving
of a motor
vehicle
where the identity of neither
the owner nor the driver thereof has been established
,
be obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of
any bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the
driving of a motor
vehicle by any person at any place within the Republic, if the injury
or death is due to the negligence or other
wrongful act of the driver
or of the owner of the motor vehicle or of his or her employee in the
performance of the employee's
duties as employee: . . .’ (My
emphasis.)
[3]
The Fund defended the action and delivered a special plea and a main
plea disputing liability. For present purposes only the
special plea
raised by the Fund is relevant. In that special plea the Fund averred
that the appellant’s claim was unenforceable
because the
appellant had not lodged a claim in respect of an unidentified
vehicle within a period of two years from the date on
which her claim
arose, as required in terms of regulation 2(3) of the Regulations,
promulgated in terms of s 26 of the Act. That
regulation provides:
‘
(3)
Notwithstanding anything to the contrary in any law a claim for
compensation referred to in section 17(1)
(b)
of the Act shall be sent or delivered to the Fund, in accordance with
the provisions of section 24 of the Act, within two years
from the
date upon which the claim arose, irrespective of any legal disability
to which the third party concerned may be subject.’
The rationale for
this regulation was explained in these terms in
Mbatha v
Multilateral Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997 (3) SA 713
(SCA)
at 718H-I:
‘
.
. .
there
are good reasons for having stricter requirements for unidentified
vehicle cases, the argument has to fail. In these cases
the
possibility of fraud is greater; it is usually impossible for the
Fund to find evidence to controvert the claimant's allegations;
the
later the claim the greater the Fund's problems; in addition, whilst
in the identified vehicle case the claim against the agent
comes in
the stead of the claim against the wrongdoer, the claimant in the
present case is given an enforceable right in a case
where there
otherwise would not have been any . . .’
[1]
[4]
At the trial before the court of first instance (Sapire AJ) the
parties reached agreement on certain facts relating to the validity
of the special plea which were recorded in a written statement. The
question which, in terms of Uniform rule 33(4), the trial court
was
called upon to decide was in essence whether the appellant’s
claim as set out in her claim form read together with the
documents
which she lodged with the Fund, under cover of a letter dated 17
October 2005 sent by her attorney to the Fund, constituted
a valid
claim in terms of the Act and the regulations promulgated thereunder.
[5]
It is convenient at this juncture to quote the statement of the
agreed facts between the parties. The material parts of which
read as
follows:
‘
1
. . .
2. . . .
3.
Plaintiff’s action against Defendant falls under section
17(1)(b) of the act and in the circumstances regulation 2 of
the
regulations promulgated in terms of the act (“
the
regulations
”) applies;
4. Defendant raised
a special plea in terms of which it alleges that no debt exists
against Defendant under the act, due to Plaintiff’s
failure to
comply with regulation 2(3);
5. In order to have
claim a against Defendant, Plaintiff would, in terms of regulation
2(3), have to lodge
a claim with Defendant within
two years after the date of the accident, being, at the least, 28
November 2006;
6. Plaintiff lodged
a claim against Defendant by lodging a bundle of documents under
cover of a letter from her attorneys dated
17 October 2005 (“
the
claim bundle
”). A copy of this letter is attached hereto
as Annexure “SOF1”;
7. Defendant
acknowledged receipt of the claim bundle on 24 October 2005 by
affixing its date stamp to the first page of the covering
letter;
8. Defendant did not
object to the validity of the claim in terms of section 26;
9. The following
documents, excluding those which are irrelevant for the purpose of
deciding this issue, were included in the claim
bundle:
9.1
A statutory claim form in terms of section 17(1) and 24(1)(A) of the
act and regulation 3(1) of the regulations. A copy of
the claim
form is attached hereto as Annexure “SOF2”;
9.2Plaintiff’s
affidavit in compliance with section 19(f)(i) of the act. A copy of
the affidavit is attached hereto as Annexure
“SOF3”;
9.3
An affidavit by Arie Willem Jacobs, a passenger in Plaintiff’s
vehicle. A copy of the affidavit is attached hereto as
Annexure
“SOF4”;
10. Plaintiff
completed paragraph 2 of the claim form, where provision is made for
the particulars of the motor vehicle from the
driving of which the
claim arises, by entering the particulars of a truck with
registration number LFG 030 GP, which was driven
by one M N
Tshangase.
.
. .
11. Nowhere on the
claim form was mention made of any vehicle of which the driver or
the owner is unknown to Plaintiff.
.
. .
12. In paragraphs 6
to 8 of her affidavit Plaintiff mentions the involvement of “
an
unknown blue minibus
” and in paragraph 18 states that
“
[T]he accident was caused by the sole negligence of the
driver of the blue taxi. . .
”,
.
. .
13. In the affidavit
of A W Jacobs, he states that:
13.1
he was a passenger in the vehicle driven by Plaintiff.
13.2
“
a truck approaching from the
opposite direction turned right into the R558.
”
13.3
“
an unknown taxi also turned right
directly behind the truck. . . . .we had to swerve to avoid driving
into the taxi.
”
13.4
“
both the truck and the taxi were
negligent and caused the accident.
”
. . .
14. On May 2006,
Defendant repudiated liability in a letter of repudiation, stating
that Plaintiff was the sole cause of the collision.
A copy of this
letter is attached hereto as . . .”
15. On 21 August
2006 Plaintiff’s attorneys received a letter from Defendant
dated 17 August 2006 which referred to plaintiff’s
statutory
affidavit and the fact that Plaintiff attempted to avoid a collision
with a taxi when her vehicle slipped and collided
with the rear of
the insured vehicle. A copy of this letter is attached hereto as
Annexure “SOF5”;
16. On 29 May 2007
17. The South
African Police Services, Lenasia investigated a case of reckless and
negligent driving and culpable homicide, relating
to the collision,
under docket with MAS number 1331/11/2004. A copy of the first page
of the docket cover is attached hereto
as Annexure “SOF6”.
18. The following
documents, excluding those which are irrelevant for the purpose of
deciding this issue, was contained in the docket.
17.1
An affidavit by Arie Willem Jacobs dated 27 April 2005. A copy of
this affidavit is attached hereto as Annexure “SOF7”;
17.2
A warning statement by Plaintiff dated 15 April 2005. A copy of this
statement is attached hereto as Annexure “SOF8”;
19. In paragraph 2
of the affidavit by Arie Willem Jacobs he states that a blue taxi
turned
in front of them and that
it “
. . . never stopped and we didn’t take the
registration down.
”
.
. .
20. In the warning
statement of Plaintiff she states that a taxi “
. . . turned
towards north without stopping at the robots. . .
”,
.
. . .’
[6]
I consider it apt, at this stage, to set out the list of documents
sent by the appellants attorneys to the Fund under cover
of their
letter of 17 October 2005:
‘
(a)
the statutory Form 1 claim form for compensation
and medical report;
(b)
the statutory medical report;
(c)
a copy of appellant's identity document;
(d)
a
copy of appellant's driver's licence;
(e)
the
statutory affidavit in terms of s 19
(f)
(i)
of the Act;
(f)
a
copy of the official accident report;
(g)
a
copy of clinical notes by appellant's
physician;
(h)
a
copy of a radiologist's report;
(i)
a
copy of a certificate issued by appellant's employer;
(j)
a copy of appellant's statement to the
investigating officer;
(
k)
a copy of
appellant's statement to comply with s 19
(f)
(i) of the Act;
(l)
a copy of receipts evidencing appellant's medical
expenses;
(m)
a copy of a statement by a passenger in
appellant's vehicle, Mr Jacobs, made to the investigating officer;
and
(n)
one made by him to comply with the Act;
together with
(o)
the
power of attorney granted to appellant's legal representatives.’
[7]
On 19 May 2006 the Fund, apparently having confined its determination
of the fate of the claim with reference to the claim form
only,
repudiated liability, asserting that the appellant was the sole cause
of the collision. On 17 August 2006 the Fund’s
claim handler
wrote to the appellant’s attorneys as follows:
‘
Your
letter dated the 2
nd
of August 2006 refers.
On her S19(f)
affidavit, claimant stated that she was trying to avoid a collision
with a certain taxi by trying to make a dead stop
but her motor
vehicle slipped and ended up colliding with our insured driver on the
rear.
Unfortunately, this
does not prove any negligence on the part [of] our insured driver and
instead, he is the one that was rear ended
by your client.’
This
was the first time in communication with the appellant’s
attorneys that the Fund made reference to the appellant’s
affidavit that accompanied the claim form. It ignored what was said
in the accompanying documentation concerning the culpability
of the
unidentified taxi which, it was alleged, was the cause of the
collision.
[8]
The court of first instance based its finding on the statement of
agreed facts and upheld the Fund’s special plea. It
dismissed
the action with costs. Sapire AJ’s reason essentially was that
the appellant’s claim form did not relate
to a claim based on
the negligence of the driver of an unidentified vehicle. In reaching
this conclusion the learned judge opined
that:
‘
The
indisputable fact is and remains that the basis of the plaintiff’s
claim as specifically stated in the claim form was
the negligence of
the vehicle there specified. Negligence on the part of the driver of
an unidentified vehicle may have given rise
to a claim on a different
basis altogether.’
In
short, the trial court found that the appellant had in fact
instituted an action against the Fund without first lodging a claim
for compensation in the prescribed form with the Fund in respect of
the claim that she sought to advance in her action, that is,
in
respect of an unidentified vehicle.
[9]
The trial court subsequently granted leave to appeal to the Full
Court. On appeal the Full Court upheld the judgment of the
trial
court in a judgment reported as
Pithey v
Road Accident Fund
2013 (5) SA 226
(GNP), (Bertelsmann J, Preller and Mabuse JJ concurring) and
dismissed the appeal with costs. The present appeal, with the special
leave of this court, is against that judgment and order.
[10]
The Full Court noted that the appellant had provided the Fund with
two statements of her own, as to how the collision giving
rise to her
claim arose and two further statements from a Mr Jacobs who was a
passenger in the cab of the vehicle of which she
was the driver. In
her first statement, the appellant inter alia averred that in her
attempt to avoid a collision with a taxi travelling
in an easterly
direction she swerved towards the left lane but her vehicle skidded
and collided with the rear-end of a truck. In
the second statement
she attributed the collision to the sole negligence of the driver of
‘the blue taxi’ whose identity
and that of the owner were
not established. Mr Jacobs in his second statement attributed the
collision to the joint negligence
of both the truck and the blue
taxi.
[11]
The Full Court went on to observe that in completing the claim form
the appellant provided the particulars of the truck and
of its owner
and driver at the time of the collision being those of the motor
vehicle from the driving of which her claim for compensation
arose.
As against that, the Full Court again noted that the appellant
completed paragraph 2(d) of the claim form relating to an
unidentified vehicle with the words ‘not applicable’. It
then concluded that the claim form (Form 1) unequivocally
conveyed to
the Fund that the collision was caused by the driver of the truck
whose particulars were provided as were the particulars
of the owner
and the truck.
[12]
The Full Court found that in the context of the case before it, the
question whether there was substantial compliance with
ss 17 and 24
of the Act did not arise. It took the view that the pertinent
question was whether Form 1 (being the claim form for
compensation
sent to the Fund) ‘correctly indicated that the claim to be
instituted by the appellant was one in terms of
s 17(1
(b)
rather than s 17(1)
(a)
’.
[13]
Emphasising that viewpoint the Full Court stated:
‘
[33]
. . . As has been said above, there is a fundamental difference
in the nature of the respective claims. The respondent
faces
significantly different scenarios, depending on the nature of the
claim. The investigation of those claims and the steps
that need to
be taken to enable the Fund to deal with potential litigation or the
consideration of an offer of settlement assume
different proportions,
depending on whether the insured driver can be consulted or is
unknown and therefore never able to
enlighten the respondent in
respect of any facts that might assist in the decision to oppose or
to compromise any claim.
[34]
For these reasons it is essential that the respondent be
correctly informed whether the insured driver's identity is
known or not, whether the prescriptive period is two or three years
and whether the owner of the insured vehicle — and the
vehicle
itself — can be traced or not. The requirement to indicate that
the claim falls either under s 17(1)
(a)
or s 17(1)
(b)
is therefore clearly non-negotiable and an essential requirement of
the correct application of the claim process. If the
incorrect information
is supplied in this regard the result must
be fatal to the claim.’
[2]
[14]
It went further to say the following:
‘
[41]
The true question in this appeal is whether the claim as such was
correctly identified in Form 1. The delivery of the form,
duly
completed, has always been a peremptory requirement. The distinction
between claims submitted in terms of s 17(1)
(a)
on the one hand, and s 17(1)
(b)
on
the other, has always been regarded as fundamental and therefore the
correct identification of the claim to be instituted either
as one in
which the insured vehicle is identified, or as one in which the
opposite is the case, must be regarded as peremptory.
[42]
It follows that the unambiguous identification of a claim as one
that arose as a result of the driving of an identified
vehicle
cannot be substituted by the filing of a contradictory affidavit as
one caused by an unidentified vehicle.’
[3]
[15]
Dealing with the contention advanced on behalf of the appellant that
the incorrect information provided in the claim form was
cured by the
affidavits which accompanied it, the Full Court held that it was
unavailing because the four affidavits contained
contradictory
averments concerning the accident and were incapable of correcting
any error in the claim form. That error, it concluded,
remained
uncorrected despite the fact that the appellant should have realised
from the content of the Fund’s letter of 17
August 2006 that
‘the respondent accepted, on the basis of the information
supplied to it, that it was dealing with a claim
in terms of s
17(1)
(a)
’.
[16]
Since the claim form and the documents submitted to the fund are
pivotal to a decision in this matter, it is necessary to consider
the
statutory provisions pertaining thereto. First, the relevant parts of
s 24 read as follows:
‘
(1)
A claim for compensation and accompanying medical report under
section 17 (1) shall─
(a)
be set out in the prescribed form, which shall be
completed in all its particulars;
(b)
be sent by registered post or delivered by hand to
the Fund at its principal, branch or regional office, or to the agent
who in
terms of section 8 must handle the claim, at the agent's
registered office or local branch office, and the Fund or such agent
shall
at the time of delivery by hand acknowledge receipt thereof and
the date of such receipt in writing.
. . .
(4)
(a)
Any
form referred to in this section which is not completed in all its
particulars shall not be acceptable as a claim under this
Act.
(b)
A clear reply shall be given to each question
contained in the form referred to in subsection (1), and if a
question is not applicable,
the words “not applicable”
shall be inserted.
. . .
(5) If the Fund or
the agent does not, within 60 days from the date on which a claim was
sent by registered post or delivered by
hand to the Fund or such
agent as contemplated in subsection (1), object to the validity
thereof, the claim shall be deemed to
be valid in law in all
respects.’
[17]
Second, s 19 excludes liability in the event of a failure to provide
information in a particular form. Section 19(
f
) provides that
if the third party refuses or fails:
‘
(i)
to submit to the Fund or such agent, together with his or her claim
form as prescribed or within a reasonable period thereafter
and if he
or she is in a position to do so, an affidavit in which particulars
of the accident that gave rise to the claim concerned
are fully set
out; or
(ii) to
furnish the Fund or such agent with copies of all statements and
documents relating to the accident that gave rise
to the claim
concerned, within a reasonable period after having come into
possession thereof. . . .’
the
Fund shall not be obliged to compensate the third party in terms of s
17 for any loss or damage. The affidavit and copies of
statements and
the documents mentioned in s 19
(f)
are required to provide details of how the accident giving rise to
the claim arose. It is abundantly clear that the purpose of
this
provision is, inter alia, to furnish the Fund with sufficient
information to enable it to investigate the claim and determine
whether or not it is legitimate.
[4]
[18]
I pause to say something about the primary purpose and objectives of
the Act. It has long been recognised in judgments of this
and other
courts that the Act and its predecessors represent ‘social
legislation aimed at the widest possible protection
and compensation
against loss and damages for the negligent driving of a motor
vehicle’.
[5]
Accordingly,
in interpreting the provisions of the Act, courts are enjoined to
bear this factor uppermost in their minds and to
give effect to the
laudable objectives of the Act. But, as the Full Court correctly
pointed out, the Fund which relies entirely
on the fiscus for its
funding should be protected against illegitimate and fraudulent
claims.
[19]
It has been held in a long line of cases that the requirement
relating to the submission of the claim form is peremptory and
that
the prescribed requirements concerning the completeness of the form
are directory, meaning that substantial compliance with
such
requirements suffices.
[6]
As
to the latter requirement this court in
SA
Eagle Insurance Co Ltd v Pretorius
[7]
reiterated
that the test for substantial compliance is an objective one.
[20]
In
Multilateral Motor Vehicle Accidents Fund v Radebe
[1995] ZASCA 80
;
1996 (2)
SA 145
(A) at 152E-I, Nestadt JA said:
‘
It
is true that the object of the Act is to give the widest possible
protection to third parties. On the other hand the benefit
which the
claim form is designed to give the fund must be borne in mind
and given effect to. The information contained in
the claim form
allows for an assessment of its liability, including the possible
early investigation of the case. In addition,
it also promotes the
saving of the costs of litigation. . . . These various advantages are
important and should not be whittled
away. The resources, both in
respect of money and manpower, of agents and particularly of the fund
are obviously not unlimited.
They are not to be expected to
investigate claims which are inadequately advanced. There is no
warrant for casting on them the
additional burden of doing what the
regulations require should be done by the claimant. . . .’
Although
these remarks were made in a different context they articulate, in my
view, the purpose that the claim form is intended
to serve.
[21]
The argument advanced on behalf of the appellant was in essence the
following. It was contended that although s 17(1) distinguishes
between two categories of claims the fact that the appellant, in
completing the claim form, conveyed the impression that she was
advancing a claim relating to an identified motor vehicle whereas her
claim pertained to an unidentified vehicle did not invalidate
her
claim. In support of this contention, Mr Botha, who appeared on
behalf of the appellant, contended that the claim form ought
not to
have been read in isolation but together with the documents that
accompanied it. Had that approach been adopted by the Fund,
continued
the argument, rather than focusing intently on a specific paragraph
of the form, the Fund would have realised that the
claim advanced by
the appellant was that arising from the driving of a motor
vehicle where the identity of neither the owner
nor the driver
thereof had been established.
[22]
Mr Botha further submitted that even on the acceptance that the claim
form ─ read with the accompanying documents ─
contained
incorrect or contradictory information it was not open to the Fund to
seize upon that fact and employ it as a subterfuge
to defeat the
appellant’s otherwise legitimate claim. What the Fund ought to
have done, concluded the argument, was to investigate
the claim by
making enquiries. For this proposition counsel relied on
Constantia
Insurance Co Ltd v Nohamba
1986 (3) SA 27
(A). There, Galgut AJA,
after referring to earlier decisions of this and other courts said
(at 39G-H):
As
we have seen from the
Commercial Union
case
supra
at 517 [
Commercial Union Assurance Co of
South Africa Ltd v Clarke
1972 (3) SA
508
(A) at 517E] and the
Gcanga
case
supra
at 865 [
AA Mutual Insurance Ltd v Gcanga
1980 (1) SA 858
(A)] the purpose of the form is to enable the
insurance company to "enquire into a claim" and to
investigate it.
It is designed to "invite, guide and facilitate
such investigation". It follows, in my view, that, if an
insurance company
is given sufficient information to enable it to
make the necessary inquiries in order to decide whether "to
resist the claim
or to settle or to compromise it before any costs
of litigation are incurred", it should not thereafter be allowed
to
rely on its failure to make the inquiries.’
[23]
The principal argument advanced on behalf of the Fund in resisting
the appeal went as follows. First, it was contended that
no claim had
been lodged on behalf of the appellant in respect of an unidentified
vehicle as provided for in regulation 2(3) which
was the claim that
the appellant advanced in her action in the court of first instance.
It was submitted that the appellant sought
to advance a claim for
compensation as contemplated in s 17(1)
(b)
of the Act, when in fact, no such claim had been lodged with the Fund
within two years of the date of the accident as required
by
regulation 2(3). In elaboration, it was submitted that in completing
paragraph 2(a) of the claim form and unequivocally stating
in
paragraph 2(d) of the claim form that the latter was not applicable,
the appellant thereby categorically disavowed any claim
for
compensation in terms of s 17(1)
(b)
of the Act. Pointing out that the requirements of regulation 2(3)
were peremptory, counsel contended ─ with reference to
what was
said by this court in
Geldenhuys &
Joubert v Van Wyk & another
;
Van
Wyk v Geldenhuys & Joubert & another
2005 (2) SA 512
(SCA) ─ that having regard to the fundamental
difference between a claim under s 17(1)
(a)
and one under s 17 (1)
(b)
the incorrect identification of the claim in the claim form had fatal
consequences for the appellant in that no claim other than
the one in
respect of which a claim form was lodged is enforceable.
[24]
In
Geldenhuys
this court was considering the question whether regulation 2(3) made
under s 26 of the Act was valid. It reiterated that the distinction
that the Act makes between s 17(1)
(a)
and s 17(1)
(b)
claims is fundamental because of its implications as articulated in
Bezuidenhout
v Road Accident Fund
.
[8]
It
went on to say that ‘the regulatory scheme . . . differs in two
ways from the periods the statute determines for the prescription
of
identified vehicle claims. First, the two-year period for lodging a
claim is one year shorter than the prescription period the
statute
specifies for identified vehicle claims; and, second, the regulatory
scheme makes no special allowance for minors’.
[25]
It is true that there is, in terms of the Act and regulation 2(3), a
fundamental distinction between a claim under s 17(1)
(a)
and one under s 17(1)
(b
).
This cannot, however, be taken to mean that even when the Fund,
within the prescribed two year period is in possession of information
which a claimant is statutorily obliged to supply and which, when
read in tandem with the claim form, which in the circumstances
of
this case the claimant clearly intended, reveals that the claim
really relates to an unidentified vehicle, the Fund is entitled
to
repudiate the claim on the basis that no valid claim had been made.
Nor ought the Fund to benefit from its own failure to clarify
with
minimal time, effort and expense, whatever confusion the claim form
and attached documentation revealed. This is not a case
where no
information was supplied to the Fund in relation to the claim in
terms of s 17(1)(
b
).
At worst, for the appellant, she supplied conflicting information
which could be undone with relative ease. Significantly, it
has not
been suggested that there is even a whiff of a fraudulent or made-up
claim.
[26]
It was submitted on behalf of the Fund that, since no affidavit was
filed by the appellant with the police within 14 days of
being able
to do so, as was required by regulation 2(1)(
c
),
[9]
read
with s 17(1)(
b
)
of the Act which was applicable at the time and which has since been
ruled unconstitutional by the Constitutional Court, the Fund
could
not have been expected to make enquiries about a claim involving an
unidentified vehicle. Put simply, it was contended that
the absence
of such an affidavit together with the claim form created the
unambiguous impression that the claim was one in respect
of an
identified vehicle. As stated earlier, this ignores the factually
detailed evidence in the accompanying documentation indicating
clearly that the claim was one in respect of an unidentified vehicle.
To uphold the Fund’s contentions in the circumstances
of the
present case would be to: (a) elevate form above substance; (b) be
rigidly technical against a just result; and (c) to subvert
the
objects of the Act alluded to above. I emphasise that this judgment
does not purport to lay down any general rule but is decided
on its
own very specific facts
[27]
In the result the following order is made:
1 The appeal is
upheld with costs.
2 The order of the
Full Court is set aside and in its place is substituted the
following:
‘
The
appeal succeeds with costs. The order of Sapire AJ is set aside. In
its place is substituted the following order:
The
special plea is dismissed with costs.’
X M PETSE
JUDGE OF APPEAL
APPEARANCES:
For
the Appellant:E Botha
Instructed
by:
Gildenhuys
Malatjie Inc, Pretoria
Honey
Attorneys, Bloemfontein
For
the Respondent: F A Snyckers SC (with him A Viljoen)
Instructed
by:
Lindsay
Keller, Care of Maponya Inc, Pretoria
Matsepes,
Bloemfontein
[1]
Rondalia
Versekeringskorporasie van Suid-Afrika Bpk v Lemmer
1966 (2) SA 245
(A) at 256A;
Nkisimane
& others v Santam Insurance Co Ltd
1978 (2) SA 430
(A) at 434F-G.
[2]
Pithey
v Road Accident Fund
2013 (5) SA 226
(GNP) paras 33-34.
[3]
Fn
6 paras 41-42.
[4]
See
further in this regard
Geldenhuys
& Joubert v Van Wyk & another
;
Van
Wyk v Geldenhuys & Joubert & another
2005 (2) SA 512 (SCA).
[5]
Road
Accident Fund v M obo M
[2005] 3 All SA 340
(SCA) para 12;
Aetna
Insurance Co v Minister of Justice
1960 (3) SA 273
(A) at 285E-F;
Multilateral
Motor Vehicle Accidents Fund v Radebe
[1995] ZASCA 80
;
1996 (2) SA 145
(A) at 152E-I;
Bezuidenhout
v Road Accicent Fund
2003 (6) SA 61
(SCA) para 7 and the cases therein cited.
[6]
See
Rondalia
Versekeringskorporasie van Suid-Afrika Bpk v Lemmer
1966
(2) SA 245
(A)
;
Nkisimane
& others v Santam Insurance Co Ltd
1978
(2) SA 430
(A)
, particularly at 435F–436E;
AA
Mutual Insurance Association Ltd v Gcanga
1980
(1) SA 858 (A)
at 865B–F;
Evins
v Shield Insurance Co Ltd
1980
(2) SA 814
(A)
at 831B–F;
Guardian
National Insurance Co Ltd v Van der Westhuizen
1990
(2) SA 204 (C)
at
210B–211F
.
[7]
SA
Eagle Insurance Co Ltd v Pretorius
[1997] ZASCA 107
;
1998 (2) SA 656
(SCA) at 663D-E.
[8]
Bezuidenhout
v Road Accident Fund
2003 (6) SA 61
(SCA) paras 6 and 15.
[9]
Regulation
since declared unconstitutional by the Constitutional Court in
Engelbrecht
v Road Accident Fund & another
[2007] ZACC 1
;
2007 (6) SA 96
(CC);
[2007 (5) BCLR 457
(CC)].