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[2016] ZAECMHC 45
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Nondabula v Road Accident Fund (2845/13) [2016] ZAECMHC 45 (27 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO. 2845/13
Reportable
In
the matter
between:
MKHENKESE
NONDABULA
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
ALKEMA
J
[1]
The crisp issue in this case is whether or not the plaintiff’s
claim against the defendant has become prescribed in terms
of section
23 (1) of the Road Accident Fund Act 56 of 1996 (the Act). More
particularly, whether on the facts of this case
section 23 (1)
applies which provides for a prescription period of three years; or
whether section 23 (3) which provides for a
prescription period of
three years.
[2]
The facts of this case are agreed by the parties in a Rule 33 stated
case and may be summarised as follows:
“
1.
The collision occurred on 3 May 2010;
2.
The plaintiff’s claim was lodged with the Fund (the defendant)
on 14 May 2013.
3.
On 4 October 2013 the Defendant made a without prejudice offer of
settlement on the merits
predicated upon an apportionment of
negligence of 70%/30% in favour of the plaintiff. (I will
shortly return to the content
of the offer).
4.
On 7 November 2013, Plaintiff within the period open for acceptance
accepted Defendant’s
offer.
5.
On 11 January 2016 the defendant gave notice of its intention to
amend its plea by the introduction
of a special plea of prescription;
6.
Plaintiff filed a replication to the
amended plea pleading:
6.1
That the dispute was finally settled by the offer and acceptance
dated 7 November 2013;
6.2
Defendant has waived its right to prescription; and
6.3
Defendant is estopped from raising the defence of prescription.”
[3]
The Special plea referred to in para 5 above and the issues raised in
the replication referred to in para 6 above were argued
before me on
22 August 2016. The issues are:
“
1.
Whether on the facts of this case the period of prescription is 3
years as provided for in section 23 (1),
or 5 years as provided for
in section 23 (3) of the Act;
2.
If three years under section 23 (1), whether the right to raise
prescription was compromised
by the settlement agreement of 7
November 2013;
3.
If the right to claim prescription was not compromised by the
settlement agreement, whether
defendant:
3.1
had waived its right to claim prescription; and
3.2
is estopped from raising prescription.”
[4]
A recent articulation confirming the fundamental tenet of statutory
interpretation is contained in the judgment of the Supreme
Court of
Appeal in the matter of
Premier Foods (Pty) Ltd v Manoim &
Others
2016 (1) SA 445
at 462-463 Para 42 per Gorven AJA,
(referring to the dictum stated in
Cool Ideas 1186 CC v Hubbard &
Another
2014 (4) 474 CC at para 28) namely:
“
A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a) that
statutory provisions should always be interpreted purposively; (b)
the relevant statutory provision must be properly contextualised;
and
(c) all statutes must be construed consistently with the
Constitution, that is, where reasonably possible legislative
provisions
ought to be interpreted to preserve the constitutional
validity. This proviso to the general principle is closely
related
to the ‘purposive approach’ referred to in (para)
(a).”
[5]
To contextualise section 23 (1), it must not only be read against the
Act as a whole, but also against the Regulations promulgated
thereunder. I set out hereunder the relevant provisions and
quote only those sections which are relevant to the facts of
this
case.
[6]
Section 17 provides for the liability of the Road Accident Fund (the
Fund) to claimants who suffered loss and damage arising
from the
driving of a motor vehicle. It distinguishes between two
categories of claimants; to wit those cases where the identity
of the
driver or owner of a motor vehicle who caused the loss or damage has
been established (section 17 (1) (a)); and those cases
where the
identity of neither the driver nor the owner thereof has been
established (section 17 (1) (b)). In this case the
identity of
the driver was established, and section 17 (1) (a) finds
application. Section 17 (4) (a) reads:
“
(4
Where a claim for compensation under subsection (1)-
(a)
includes
a claim for the costs of the future accommodation of any person in a
hospital or nursing home or treatment of or rendering
of a service or
supplying of goods to him or her, the Fund or an agent shall be
entitled, after furnishing the third party concerned
with an
undertaking to that effect or a competent court has directed the Fund
or the agent to furnish such undertaking, to compensate-
(i)
the
third party in respect of the said costs after the costs have been
incurred and on proof thereof: or
(ii)
the
provider of such service or treatment directly, notwithstanding
section 19 (c) or (d).
in
accordance with the tariff contemplated in subsection (4) (b).”
[7]
I pause to remark that it is common cause that in this case the
plaintiff’s claim includes a claim for future medical
expenses.
[8]
For the sake of completion I also refer to sections 17 (5) and (6)
which read as follows:
“
(5)
Where a third party is entitled to compensation in terms of this
section and has incurred costs in respect of accommodation
of himself
or herself or any other person in a hospital or nursing home or the
treatment of or any service rendered or goods supplied
to himself or
herself or any other person, the person who provided the
accommodation or treatment or rendered the service or supplied
the
goods (the supplier) may, notwithstanding section 19 (c) or (d),
claim an amount in accordance with the tariff contemplated
in
subsection (4B) direct from the Fund or an agent on a prescribed
form, and such claim shall be subject,
mutatis
mutandis,
to
the provisions applicable to the claim of the third party concerned,
and may not exceed the amount which the third party could,
but for
this subsection, have recovered.
(6)
The Fund, or an agent with the approval of the Fund, may make an
interim payment to the third party out of the amount to be
awarded in
terms of subsection (1) to the third party in respect of medical
costs, in accordance with the tariff contemplated in
subsection (4B),
loss of income and loss of support: Provided that the Fund or such an
agent shall, notwithstanding anything to
the contrary in any law
contained, only be liable to make an interim payment in so far as
such costs have already been incurred
and any such losses have
already been suffered.”
[9]
Section 23 of the Act deals with the prescription of claims, and only
sections 23 (1) and (3) are relevant to this case.
These
sections provide as follows:
“
23.
(I) Notwithstanding anything to the contrary in any law contained,
but subject to subsections (2) and (3), the right to claim
compensation under section 17 from the Fund or an agent in respect of
loss or damage arising from the driving of a motor vehicle
in the
case where the identity of either the driver or the owner thereof has
been established, shall become prescribed upon the
expiry of a period
of three years from the date upon which the cause of action arose;
(2)
(Not
relevant for the purposes of this case).
(3)
Notwithstanding subsection (1), no claim which has been lodged in
terms of section 17 (4) (a) or 24 shall prescribe before the
expiry
of a period of five years from the date on which the
cause
of action arose.”
[10]
Section 17 (4) (a) is quoted above, and section 24 deals with the
prescribed procedure to be followed when claims are lodged
with the
Fund.
[11]
Section 24 (1) prescribes that a claim for compensation and
accompanying medical report under section 17 (1) “…
shall
be set out in the prescribed form, which shall be completed in all
its particulars.”
Subsection
1 (b) prescribes the manner of delivery of the claim to the Fund.
The “
prescribed
form”
contemplated
by section 24 (1) (a) is described in Regulation 7 as “
form
RAF1 attached as Annexure A to these Regulations.”
[12]
In respect of claim for hospital and medical expenses as contemplated
by section 17 (4) and (5), section 24 (3) provides that
“…
a
claim by a supplier for the payment of expenses in terms of section
17 (5) shall be in the prescribed form, and the provisions
of this
section shall apply
mutatis
mutandis
in
respect of the completion of such form.”
[13]
Save for saying that section 24 makes elaborate provision for the
manner in which the “
prescribed
form”
must
be completed and delivered to the fund, and states that (in s24 (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,”
it
is unnecessary to quote the section in full
.
[14]
Before dealing with the application of the facts in this case to the
above provisions, it is necessary to first determine the
meaning of
the above legislative provisions.
[15]
The point of departure is section 39 (2) of the Constitution which
obliges courts to interpret legislation in a manner that
promotes the
spirit, purport and objects of the Bill of Rights. The Bill of
Rights applies to all law and is pivotal to the
interpretation of all
legislation. In
Tshwane City v Link Africa
2015 (6) SA
440
at 475 (para 115) the majority judgment of the Constitutional
Court held:
“
It
is by now commonplace in our constitutional jurisprudence that all
statutes must be interpreted through the prism of the Bill
of Rights
Approached on this footing, the general rule is that a statute must
be given its ordinary grammatical meaning,
unless to do so would
result in absurdity or create discord with the Constitution.
And, most importantly, in following these
interpretive prescripts,
where it is reasonably possible, legislation must be given a meaning
that preserves its constitutional
validity. These principles
were clearly set out in Cool Ideas:
“
There
are three important interrelated riders to this general principle,
namely:
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where
reasonably possible, legislative provisions ought to
be interpreted to preserve their constitutional validity. This
proviso to
the general principle is closely related to the purposive
approach referred to in (a).” (Footnotes omitted.)
[16]
It has been recognized in a long line of cases 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.”
See:
Road Accident
Fund v M obo M
[2005]
3 All SA 340
(SCA) at para 12;
Aetna
Insurance Co v Minister of Justice
1960 (3) SA 273
(A) at 285 E-F;
Multilateral
Motor Vehicle Accidents Fund v Radebe
[1995] ZASCA 80
;
1996
(2) SA 145
(A) at 152 E-I;
Bezuidenhout
v Road Accident Fund
2003
(6) SA 61
(SCA) at para 7.
[17]
I am thus called upon to give the above provisions its ordinary
grammatical meaning, unless to do so would result in absurdity
or
create discord with the Constitution. In this regard I am urged
by Mr
Kincaid
who, together with Mr
Bester
,
appeared for the plaintiff, to find that on a proper, purposive and
contextualised approach the period of prescription under section
23
(3) on the facts of this case is five years.
[18]
This argument is premised on the common cause fact that plaintiff’s
claim includes a claim for hospital and medical expenses
as
contemplated by section 17 (4) (a), and since the word “
or”
is indicative of an alternative mechanism to section 24 as opposed to
a conjunctive stipulation, I can and should find on the ordinary
grammatical meaning of the words in section 24 (3) that the
legislature intended that a claim for future medical expenses
compensable
by way of an undertaking from the Fund constitutes an
independent mechanism for the initiation of a five year prescriptive
period.
[19]
I now turn to the interpretation of the above sections bearing the
above interpretational principles in mind.
[20]
On the ordinary grammatical meaning of section 23 (1), the period of
prescription is three years from the date of the collision:
1.
subject to the operation of subsection (3); and
2.
provided the identity of either the driver or owner of the insured
vehicle has been established.
[21]
It is common cause that the identity of the driver has been
established and that this is a claim under section 17 (1) (a).
It follows that subject to subsection (3), the prescription period is
three years.
[22]
Subsection (3) provides that, notwithstanding subsection (1), no
claim “
which
has been lodged …”
in terms of either section 17 (4) (a) or section 24 shall prescribe
before the expiry of a period of five years from the date of
the
collision. Put differently, if a claim has been lodged in terms
of either section 17 (4) (a) or 24, such claim will prescribe
upon
the expiry of five years. This is the ordinary grammatical
meaning of subsection (3). It follows that to determine
whether
the period of prescription is three years as provided for in
subsection (1), it must first be determined if a claim has
been
lodged in terms of either section 17 (4) (a) or section 24 within the
three year period. If not, the claim became prescribed
after
the expiry of the three year period; if so, the period of
prescription is extended to five years.
[23]
If the claim is only in respect of hospital and medical expenses
under section 17 (4), such claim is lodged by making a claim
under
section 17 (5) quoted above. If the claim includes, for
instance, general damages, then it is lodged as provided for
in
section 24 read with Regulation 7 referred to above. If such
lodgement occurs within the three year period provided for
by section
23 (1), then the period of prescription is extended to five years by
virtue of the operation of section 23 (3); if not,
the claim
prescribes after three years. In my respectful view, on the
wording used in the Act, this is the only interpretation
that can be
attributed to section 23 (1) read with 23 (3).
[24]
The above interpretation also meets the requirement of
purposiveness. The purpose of distinguishing between three and
five years, in my respectful view, is this.
[25]
It has repeatedly been recognised that the content of the claim form
and accompanying medical reports allow for an early investigation
in,
and an assessment of, both the merits of the claim and the quantum of
damages. The Fund relies entirely on the fiscus
for its funding
and it has a duty to the public to protect itself against
illegitimate or fraudulent claims. The particularity
required
by section 24 and Regulations 2, 3, 4, 5 and 6 is designed to place
the Fund in the position to properly and timeously
investigate and
assess any claim and its quantum. See:
Multilateral
Motor Vehicle Accident Fund v Radebe
[1995] ZASCA 80
;
1996 (2) SA 145
(A) at 152E-Z; and
Guardian
National Insurance v Van der Westhuizen
[1990]
All SA 357
(C). If a claim is not timeously lodged as required
by Regulation 2, then the opportunity to properly investigate the
claim
may be lost because witnesses forget, die or disappear, and
reports and other evidence may no longer be available.
[26]
Once the claim has been lodged as required by section 23 (3), the
evidence may be secured, witnesses are identified and statements
are
taken from them. In these circumstances the period of
prescription may safely be extended to five years without prejudice
to any of the parties. However, if the claim is not lodged
within three years as required by section 23 (1), then it prescribes
due to the prejudice suffered by the Fund caused by its inability to
timeously and properly investigate the claim and secure the
evidence.
[27]
I do not believe this interpretation offends the Bill of Rights or
unduly narrows the protection afforded to the third parties
under the
Act.
[28]
The three year period contemplated by section 23 (1) of the Act
expired on midnight on 2 May 2013. It is common cause
that the
plaintiff lodged his claim on 14 May 2013, outside the three year
period. Since the claim was not lodged within
the three year
period as required by section 23 (3), and for the reasons advanced, I
find that the plaintiff’s claim had
become prescribed.
[29]
The flaw in the argument advanced by Mr
Kincaid
is, with respect, that it is not enough that part of plaintiff’s
claim is for future medical expenses. To bring section
23 (3)
into operation a claimant is in addition required to lodge his or her
claim under section 17 (4) (a) (for future medical
expenses) within
the three year period as required by section 23 (1); or
alternatively, to lodge any other claim under section
24 within the
said three year period. If this happens, the period of
prescription is extended to five years under section
23 (3); if not,
it remains three years under section 23 (1).
[30]
The argument advanced by Mr
Kincaid
completely ignores the wording “…
which
has been lodged …”
in section 23 (3). This is impermissible in the law of
interpretation, and meaning and effect must be given thereto.
[31]
Claims are lodged in terms of section 24, and, in the case of future
medical expenses, in terms of section 17 (5) read with
section 24
(3). It is the timeous lodgement of these claims which triggers
section 23 (3) and extends the prescription period
to five years.
This has not happened on the facts of this case.
[32]
Surprisingly, there are not many reported judgments where the above
provisions have been judiciary interpreted. I have
been
referred to only
Van
Zyl vs Road Accident Fund
2012
SA (GSJ) Case No. 3499/2009 (unreported).
[33]
In
Van
Zyl
(
supra
)
the RAF4 form containing the “
serious
injury assessment”
was served after the expiry date of the three year period. The
issue which arose was whether such report forms part of the
“
claim”
which had to be lodged within the three year period under section 23
(11). It was common cause that the claim and accompanying
medical report (form RAF1) was timeously lodged under section 24.
Satchwell
J
found that in para 76 “…
where
form RAF 1 is completed with particularity in compliance with the Act
and then submitted the ‘claim’ as intended
and specified
by the Act and has been lodged.”
In
regard to the RAF 4 form containing the “
serious
injury assessment”
she found (at para 77)
the
prescription periods provided for in the Act, namely the initial
three years and the extension of two years, are both periods
during
which form RAF 4 may be submitted to the RAF …”
[34]
The above issue does not arise in this case. It is common cause
that the claim and accompanying medical report RAF 1
in this case
were lodged outside the three year period. I nevertheless find
some support in the
Van
Zyl
(
supra
)
judgment for the proposition that if the claim and RAF 1 form are
lodged within the three year period, then the period of prescription
is extended to five years under section 23 (3).
[35]
The next issue is whether the settlement agreement of 7 November 2013
compromised defendant’s right to claim prescription.
It
is necessary to refer to the relevant terms of the settlement.
They read as follows:
“
This
offer is limited to the aspect of negligence
as to the manner in which the collision occurred and the
apportionment of such negligence. This offer may not be
interpreted
or construed in a manner that would have the RAF concede
any other aspect of the claim. To avoid doubt, the RAF reserve
the
right all its rights in law with regards to all other procedural
and substantive aspects of the claim.
If
this offer was made after prescription of the claim, it will not be
deemed to be a waiver of prescription and any purported acceptance
will not be enforceable.”
The
last sentence reads:
“
In
full and final settlement of the issue of negligence, as more fully
set out in the offer, I hereby accept the above offer of
settlement.”
(The
emphasis is mine).
[36]
It is clear from the above terms that only the issue of negligence
was settled — i.e. the manner in which the collision
occurred.
The right to claim prescription is expressly reserved and by the very
terms of the settlement agreement the right
to claim prescription was
not compromised. And neither was the issue of
quantum
of damage.
[37]
I therefor have no hesitation in coming to the conclusion that the
right to rely on prescription was not compromised by the
settlement
agreement.
[38]
The issues of waiver and estoppel are so closely inter-related that I
intend to deal with them simultaneously.
[39]
The defendant’s right to invoke the claim of prescription arose
on 3 May 2013 when the 3 year period mentioned in section
23 (1)
lapsed. The plaintiff instituted action on 20 November 2013 and
defendant filed its plea on 27 January 2014 without
raising a plea of
prescription. On the basis that the issue of negligence was
settled on 7 November 2013, the remaining issues
which remained alive
were those concerning the
quantum
of damages and prescription. As I said, the plea filed by the
defendant on 27 January 2014 did not raise the issue of prescription,
and the litigation continued essentially on the issue of
quantum
of damages only. It was only on 11 January 2016, two years
after the filing of the plea, that the issue of prescription was
invoked by the defendant.
[40]
During the aforesaid period of two years, and having regard to the
issues on the (then) pleadings, the parties held Rule 37
conferences,
exchanged numerous notices under the Rules of Court, complied with
Case Flow Management Orders, and the plaintiff
procured reports from
a neurosurgeon and a neuropsychologist.
[41]
The amendment of the plea raising prescription on 11 January 2016
resulted in the proceedings before this Court on 22 August
2016.
[42]
Essentially, the contentions of the plaintiff are that the defendant
waived its right to, and/or is estopped from raising the
defence of
prescription as it did in its plea of 27 January 2014. Mr
Kincaid
submitted that such right was open to the defendant from 3 January
2013 (on the supposition that I find the period of prescription
is
three years and not five years). Instead of invoking such
right, which was specifically reserved under the settlement
agreement
of 7 November 2013, the defendant actively participated in the
litigation on the issue of
quantum
of damages thereby conveying to the plaintiff that it had waived its
right to prescription; alternatively, it presented to plaintiff
that
it had waived such right and it is therefore now estopped from
denying it had waived such right.
[43]
With respect, I do not believe that there is any merit in the
arguments based on waiver and estoppel. The point of departure
is that the parties expressly and unambiguously in the settlement
agreement of 7 November 2013 settled only the issue of negligence;
i.e. the manner in which the insured vehicle was being driven.
The other issues remained alive. In particular, defendant
specifically reserved the right to invoke the defence of
prescription.
[44]
The defendant, to the knowledge of the plaintiff, had the right to
engage the plaintiff in litigation on the issue of
quantum
of damages with the reservation of the right to invoke the defence of
prescription at any time in the future. From 20 November
2013
when plaintiff instituted the action the defendant acted within its
rights to engage plaintiff in litigation on the issue
of
quantum
,
and when it raised the issue of prescription on 11 January 2016 it
did so by exercising its right specifically reserved on 7 November
2013.
[45]
The plaintiff’s defences of waiver and estoppel are not based
on an express term or misrepresentation, but on a tacit
term or
misrepresentation based on the defendant’s conduct. It is
trite that it is a requisite of waiver that the contracting
party
must have the intention to waive its contractual right. Having
gone to the trouble of specifically reserving the right
to claim
prescription, the conduct of the defendant must exhibit an intention
to abandon or waive the right so specifically reserved.
[46]
In
Hepner v Roodepord-Maraisburg Town Council
1962 (4) SA 772
(A) at 778 D-F
Steyn
CJ stated:
“
There
is authority for the view that in the case of waiver by conduct, the
conduct must leave no reasonable doubt as to the intention
for
surrendering the right in issue (Smith v Momberg 1895}SC 295 at page
304; Victoria Falls and Transvaal Power Co Ltd v Consolidated
Langlaagte Ltd
1915 AD 1
at p 62) but in Martin v de Kock
1948 (2) SA
719
(AD) at p 733 this Court indicated that that view may possibly
require reconsideration. It sets, I think, a higher standard
than that adopted in Laws v Rutherfund
1924 AD 261
at p263, where
Innes CJ says:
‘
The
onus is strictly on the appellant. He must show that the
respondent, with full knowledge of her right, decided to abandon
it,
whether expressly or by conduct plainly inconsistent with an
intention to enforce it.’
This
accords with the test applied in City of Cape Town v Kenny
1934 AD
543
and was followed in Collen v Rietfontein Engineering Works
1948
(1) SA 413
(AD) at p 436 and Linton v Corser
1952 (3) SA 685
(AD)at p
695. Cf. Ellis and others v Laubcher
1956 (4) SA 692
(AD) at p 702).
In my opinion the test is more correctly stated in these cases.”
[47]
Our case law shows that clear proof is required, especially of a
tacit as opposed to an express waiver, indicating an intention
to
waive. It is true, as submitted by Mr
Kincaid
,
that the defendant’s failure to raise prescription in its plea
of 27 January 2014 is consistent with an intention not to
enforce it,
but it is equally consistent with a host of other reasons not to
enforce prescription. Plaintiff, to this day,
contends that the
period of prescription is five years as provided for in section 23
(3). The defendant could equally have
suffered from the same
misconception, or the failure to plead prescription may have been a
failure to properly investigate and
research the applicable period of
prescription, or sheer incompetence, or negligence, or lethargy, or
based on a decision to first
investigate the
quantum
in the spirit of the social legislation to provide the widest
possible protection to the plaintiff before deciding whether or not
to plead prescription.
[48]
In my view, there is no clear proof of intention to waive
prescription by not pleading such defence on 27 January 2014.
[49]
The same principles apply to estoppel. Estoppel is the false
representation by a contracting party to another contracting
party
that a certain state of affairs exist, well knowing that it is not
the truth. If the other contracting party, induced
by the
misrepresentation, and acting on such misrepresentation, acts to his
or her prejudice, then the first contracting party
is estopped from
relying on the true state of affairs.
[50]
There is no proof, for the reasons advanced above, that the defendant
intended by its failure to plead prescription on 27 January
2014 to
falsely misrepresent to plaintiff that it had waived its right to
invoke prescription. By invoking the defence of
prescription it
acted within its rights and its failure to do so on 27 January 2014
was equally consistent with other, innocent,
reasons mentioned
earlier.
[51]
It is true that the defendant’s failure to plead prescription
on 27 January 2014 and to engage the plaintiff in litigation
on
issues of quantum in circumstances where it ought to have known that
the claim had become prescribed, had resulted in the plaintiff
incurring unnecessary legal costs including the expenses of obtaining
expensive medical-legal reports. To this extent the
defendant
may have caused the plaintiff to suffer unnecessary expenses and
costs. But this may be remedied by an appropriate
costs order.
I believe the plaintiff may argue convincingly that the defendant
should be liable for the costs and expenses
from 27 January 2014.
But this consequence, prejudicial as it may be to the plaintiff, is
no proof for intention for purposes
of waiver or estoppel.
[52]
Mr
Clark
,
who appeared on behalf of the defendant, referred me on the issues of
waiver and estoppel to
Road
Accident Fund v Mothupi
2000
(4) SA 38
(SCA) at 51
et
seq
.
On the issue of waiver
Nienaber
JA said at p 51
et
seq
(para 23):
“
The
argument, even in its amplified form, remains unconvincing.
Conclusion (d) simply does not follow from premise (a). By not
disputing negligence the Fund did not concede liability in toto. MNM
never intimated in advance that the plaintiff would accept
whatever
quantification the Fund proposed. The possibility of litigation could
therefore not be excluded, even if the merits, so
called, were no
longer in dispute. Neither side ever mentioned a concrete figure to
the other. The quantification of the claim
therefore remained wide
open. A waiver of prescription would mean that the Fund, as debtor,
bound itself in advance never to raise
prescription against the
plaintiff even if the quantum was not settled. By not actively
disputing the merits Van Schalkwyk at most
conveyed the impression
that the defendant was not going to rely on the defence that the
insured driver was not negligent; non
constat that it could
reasonably be understood to have conveyed the notion that the Fund
abandoned any other defences that may
have been open to it should the
parties not have reached a satisfactory settlement. Nothing Van
Schalkwyk did could reasonably
have led MNM (or the plaintiff or
someone in her shoes), to believe that prescription was present to
the mind of Van Schalkwyk
at the time. The correspondence makes it
clear that neither side gave prescription a thought. Nothing Van
Schalkwyk did could therefore
have led the plaintiff (or her notional
alter ego) to believe that the statutory right which was given to the
Fund for that very
eventuality would not be relied upon by it should
the occasion for doing so arise. Absent a ‘sorgplig’, as
Van Schalkwyk
testified, an assertion not challenged on behalf of the
plaintiff, no duty rested upon him or the Fund to alert MNM to the
perils
of prescription. Moreover, the plaintiff failed, indeed, did
not even begin to prove that ‘information sought by the
Defendant
could not be obtained prior to 2rd August 1996’,
which was one of the principal allegations pleaded by her in support
of
her reliance on waiver. And finally, any doubt as to how Van
Schalkwyk’s actions were to be interpreted must be resolved
against the plaintiff
who
bears the onus to prove waiver.”
[53]
On the issue of estoppel, the learned Judge of Appeal said at 53
(para 29):
“
The
test for inferred waiver, as stated earlier in par [16], is the
impression created by the conduct of the Fund on the mind of
the
plaintiff’s notional alter ego; that, as it happens, is also,
in the context of estoppel, the test for a representation
(Aris
Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd, supra,
(292E-F); Rabie. The Law of Estoppel in South Africa, 37).
Having
earlier found that the conduct of Van Schalkwyk was not capable of
creating the reasonable impression that the Fund meant
to waive
prescription in perpetuity, it seems to me that by the same token and
for substantially the same reasons it is not capable
of creating the
reasonable impression that prescription will not be invoked pending
finalisation of the quantum by negotiation.
In itself that is a
sufficient reason for refusing the amendment. But as stated earlier
there is a second equally potent reason
for doing so
”
[54]
Although, as submitted by Mr
Kincaid
,
the facts in
Mothupi
(
supra
)
differ from the facts in this case, the principles enunciated in
paras 23 and 29 apply equally to the facts of this case.
[55]
In all the above circumstances I believe the defendant’s
special plea of prescription must be upheld. However,
for the
reasons mentioned, and in the absence of argument before me on the
issue of costs, I decline at this stage to make any
costs order.
If the parties are unable to agree on an appropriate costs order,
they may set the matter down again for an
appropriate costs order.
[56]
I make the following order:
1.
The plaintiff’s special plea is upheld and it is declared that
the plaintiff’s
claims have become prescribed, and the claims
are accordingly dismissed.
2.
The issue of costs are adjourned sine die with leave to set the
matter down on the issue
of costs only in the absence of agreement
between the parties.
_______________________
ALKEMA
J
Delivered
on 27 September 2016
Counsel
for Applicant
:
Mr Kincaid
Instructed
by
: S Z Jojo Attorneys
Counsel
for Respondent
: Mr
Clark
Instructed
by
: Messrs Smith Tabata
Attorneys