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[2006] ZASCA 172
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Road Accident Fund v Smith (334/05) [2006] ZASCA 172; 2007 (1) SA 172 (SCA) (28 September 2006)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 334/05
REPORTABLE
In the matter between:
THE
ROAD ACCIDENT FUND APPELLANT
v
SHELDON SMITH
RESPONDENT
Coram: Harms, Brand,
Cloete, Mlambo JJA and Cachalia AJA
Heard: 25 August 2006
Delivered: 28 September
2006
Summary: Motor Vehicle Accidents –
compensation – claim in terms of
s 17(1)(b)
of the
Road
Accident Fund Act 56 of 1996
– failure by claimant to comply
with
regulation 2(1)(c)
– Fund competent to waive compliance
with
regulation 2(1)(
c) despite the peremptory nature thereof.
Neutral citation: This case may be
cited as
Road Accident Fund v Smith
[2006] SCA 123 (RSA)
_____________________________________________________
JUDGMENT
_____________________________________________________
CLOETE et MLAMBO JJA
[1] The plaintiff (the respondent on
appeal) lodged a claim with, and thereafter instituted action for
compensation against, the appellant
(the Fund) arising from injuries
he sustained when a motor vehicle collided with him on 28 April 2000.
He had been unable to identify
the vehicle that collided with him as
well as its driver or the owner and he accordingly based the claim on
s 17(1)(b)
1
anc" HREF="#sdfootnote1sym">
1
of the
Road Accident Fund Act, 56 of 1996
. As an alleged ‘hit
and run’ victim he was required to comply with
regulation
2(1)(c)
2
anc" HREF="#sdfootnote2sym">
2
(the regulation). The regulation provides:
‘
(1) In the case of
any claim for compensation referred to in
s 17(1)
(b) of the Act, the
Fund shall not be liable to compensate any third party unless –
. . .
(c) the third party
submitted, if reasonably possible, within 14 days after being in a
position to do so an affidavit to the police
in which particulars of
the occurrence concerned were fully set out; . . ..’
[2] The matter came to trial in the
Pietermaritzburg High Court before Swain J. After three days of
evidence had been led on the merits,
the Fund introduced a special
plea seeking to defeat the plaintiff’s claim by pertinently
raising his failure to comply with
the provisions of the regulation
as a defence. The plaintiff replicated that the Fund had waived
reliance on the provisions of the
regulation. Pursuant to an
agreement between the parties, Swain J ordered, in terms of
rule
33(4)
, that the issues raised in the special plea and, by necessary
implication, the replication, be dealt with separately and that all
remaining issues stand over for determination at a later date.
[3] So far as the special plea is
concerned, it was common cause that the plaintiff had not complied
with the regulation. The facts
on which the replication relied were
also common cause and can be summarized as follows. On 15 March
2001 the Fund requested
the plaintiff’s attorneys, by letter,
to provide it with documentary proof that the plaintiff had complied
with the provisions
of the regulation. In addition the Fund requested
a detailed sketch plan of the scene of the accident, photographs of
the scene of
the accident indicating the directions of travel of both
the motor vehicle and the claimant, and the point of impact as well
as ‘proof
of physical contact’. The plaintiff’s
attorneys responded by letter on 3 April 2001 in which they referred
to an annexed
copy of a cutting from a local newspaper, the Zululand
Observer, that contained a report of the collision, and went on to
point out
that, as appeared from the claim form, the plaintiff had
been hospitalised. Between 12 June and 28 November 2001
correspondence
was exchanged between the plaintiff’s attorneys
and the Fund, the significant features of which were the following:
(i) The Fund stated it had not
received the letter dated 3 April 2001. A copy was then sent to it
and it acknowledged receipt, although
it stated that it had not
received the annexures to the letter. A rough sketch plan of the
accident, together with copies of the
photographs, were then
forwarded to the Fund.
(ii) The Fund requested certain
additional information relevant to the quantum of the plaintiff’s
claim.
(iii) In response to a query by the
plaintiff’s attorneys as to whether the Fund was prepared to
concede the merits, the Fund
stated ‘we advise that merits are
80/20 per cent in favour of your client’.
[4] Swain J upheld the contentions set
out in the plaintiff’s replication and dismissed the special
plea with costs. The learned
judge found that compliance by a
claimant with the provisions of the regulation is capable of being
waived by the Fund, and that
the Fund had in fact done so in this
case. This appeal, with his leave, is directed at those conclusions.
[5] The Fund’s argument in the
court below and before us was that the failure to comply with the
regulation meant that there
was no claim and consequently no
liability on its part to compensate the plaintiff ever arose. The
argument was based on the decisions
of this court in
Road Accident
Fund v Thugwana
2004 (3) SA 169
(SCA) and
Road Accident Fund v
Makwetlane
2005 (4) SA 51
(SCA) and, in particular, at the
following statements in those decisions: In
Thugwana
at 175D
that:
‘
the effect of the
regulation is to deprive a claimant such as the respondent of a valid
claim in the event of non-compliance with
its provisions’
and at 173H that:
‘
It [the
regulation] provides a penalty for non-compliance, namely the fund
incurs no liability to the claimant’;
and in
Makwetlane
at 59H that:
‘
Assuming an
otherwise valid claim, the effect of the regulation is to non-suit a
claimant should there be non-compliance with its
provisions’;
at 61G-H that:
‘
it [compliance
with the regulation] is a step which must be taken by the claimant
after the commission of the delict as a condition
precedent to the
Fund having to compensate the claimant’;
and further at 61H-I, (quoting from
the judgment by this court in
Geldenhuys & Joubert v van Wyk:
Van Wyk v Geldenhuys & Joubert
2005 (2) SA 512
(SCA)) that:
‘
the lodging of a
claim within the two-year period prescribed by reg 2(3) was “a
precondition to the existence of the debt under
the Act” and
that if the claim is not lodged, within that period there is no
“debt”. . . . By parity of reasoning,
so it seems to me,
the same must apply to the requirement in reg 2(1) (c).’
[6] In our view the Fund’s
argument cannot succeed. The meaning sought to be ascribed to the
Thugwana
and
Makwetlane
decisions is incorrect. Those decisions do not mean that in the
absence of compliance with the regulation, there is no claim. There
is a claim, but unless there has been compliance with the regulation,
the claim is not enforceable. Put differently, absent compliance
with
the regulation, the Fund is not obliged to compensate the claimant.
It is the enforceability of the claim, not its existence,
which is
compromised by non-compliance with the regulation. In this sense,
compliance with the regulation can be described as a precondition
to
the liability of the Fund to compensate a claimant.
3
[7] Waiver of such a precondition is
possible even where, as in this case, it is couched in peremptory
terms. In
Bezuidenhout v AA
Mutual Assurance Association Ltd
1978 (1) SA 703
(A) this court stated, at 709
H
-710A:
‘
But the imperative
character of the provision is not necessarily decisive. Even a
peremptory statutory provision may be renounced
by a person for whose
benefit it has been introduced.’
4
[8] The precondition in the regulation
thus empowers the Fund to refuse to compensate a claimant in the
event of non-compliance. It
is a power placed at the Fund’s
disposal for its benefit in view of the problems which can arise in
claims emanating from hit
and run collisions. In
Mbatha
v Multilateral Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997
(3) SA 713
(SCA) at 718H-I Harms JA stated:
‘
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
. . .’
5
It would nevertheless be perfectly
proper for the Fund to waive compliance with the regulation where it
is satisfied that the claim
is genuine. Counsel for the Fund
submitted that it cannot do so because it is dealing with public
funds. This submission betrays
a serious misconception. The
regulation was inserted to protect the Fund against fraudulent and
other non-verifiable claims –
not to provide it with a
technical defence.
[9] In the present matter, the Fund
did not receive proof of compliance with the regulation, despite its
repeated requests. It nevertheless
indicated that it was prepared to
concede the merits of the claim on the basis of an 80 % apportionment
in favour of the plaintiff.
It thereafter engaged the plaintiff on
the merits at the trial. In its original plea, it did not deny that
the plaintiff had complied
with the regulation; it merely put him to
the proof of this allegation. All of this conduct on the part of the
Fund is inconsistent
with a challenge to the enforceability of the
claim. It was only after the decision of this court in
Thugwana
became known that it somewhat opportunistically inserted the special
plea in its pleadings. The inference is inescapable that when
the
trial commenced, compliance with the regulation was no longer
regarded as an issue, no doubt because the Fund was satisfied that
the plaintiff‘s claim was genuine.
[10] In the result, the conclusion
reached by Swain J that the Fund could and did waive compliance with
the regulation, cannot be
faulted. The appeal is dismissed with
costs, including the costs of two counsel.
___________
T D CLOETE
JUDGE OF APPEAL
_________
D MLAMBO
JUDGE OF APPEAL
AGREE:
HARMS JA
BRAND JA
CACHALIA AJA
1
Section 17(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
. . ..’
2
Published in Government Gazette 17939 of 25 April
1997.
3
Cf
Padongelukkefonds (voorheen Multilaterale
Motorvoertuig Ongelukkefonds) v Prinsloo
1999 (3) SA 569
(SCA) at 57F-G;
Makwetlane
para 32 at 62E.
4
See also
Road
Accident Fund v Mothupi
2000 (4) SA 38
(SCA) at 49F-G.
5
See also
Bezuidenhout
v Road Accident Fund
2003
(6) SA 61
(SCA) para 12;
Geldenhuys
& Joubert v Van Wyk and another
;
Van Wyk
v Geldenhuys & Joubert and another
(
supra
,
para 5) para 17;
Thugwana
paras 10 and 15.