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[2012] ZAGPPHC 158
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Pithey v Road Accident Fund (A375/2010) [2012] ZAGPPHC 158; 2013 (5) SA 226 (GNP) (10 August 2012)
NOT
REPORTABLE
IN
THE HGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
Case
Number: A 375/2010
DATE:10/08/2012
In
the matter between;
JOHANNA
CHRISTINA
PITHEY
.............................................................................
Appellant
and
ROAD
ACCIDENT
FUND
......................................................................................
Respondent
JUDGMENT
1.
The appellant appeals against the judgment of the court a quo, with
the latter's leave, upholding a special plea that no appropriate
claim for compensation in terms of section 17(1)(b) of the Road
Accident Fund Act 56 of 1996 ("the Act") was filed on
her
behalf prior to summons being issued.
2.
The principal facts relevant to the issues arising in this matter are
common cause. The parties prepared a statement of facts
in terms of
Rule 33(1) for the trial court and did not lead any evidence other
than the facts agreed upon in that document
3.
The plaintiff/appellant was involved in a motor vehicle collision on
the 24th November 2004. She alleged that she was the driver
of motor
vehicle HRK 237 GP which collided with motor vehicle LFG 030 GP (a
truck). This truck's driver was, however, not to blame
for causing
the collision, which had to be attributed to the negligence of the
driver of a minibus of which plaintiff did not know
the identity of
either the driver or of the owner.
4.
Appellant's claim therefore fell under section 17(1)(b) of the Act.
5.
Regulation 2 of the Regulations promulgated in terms of section 26 of
the Act therefore applies. The principal feature of Regulation
2 is
that it limits the period of prescription for the institution of
claims arising from a collision in respect of which neither
the owner
nor the driver of the vehicle the driving of which gave rise to the
claim, has been identified, to two years from the
date upon which the
cause of action arose.
6.
Claims arising from the driving of a motor vehicle where the owner's
or driver's identity has been established, prescribe within
three
years, as dictated by section 23 of the Act.
7.
Any claim instituted in terms of section 17(1)(b) of the Act would
therefore prescribe in this instance on the 23rd November
2006.
8.
On the 17th October 2005, the plaintiff's attorneys lodged a bundle
of documents purporting to be the institution of her claim.
This
bundle consisted of the following items:
a)
The statutory Form I 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 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 section 19(f)(1) of
the Act;
I)
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.
9.
The appellant's and Mr Jacobs' first statements were made in April
2005 to the investigating officer, the subsequent statements
in
October 2005.
10.Appellant's
earlier statement taken down by the police officer reads in part:
'The robot went for caution when I was approaching
the robot and
there was a Taxi which was from Eastern direction and it turned
towards North without stopping at the robots. I then
applied the
brakes and it was slippery then the car served toward the left lane
and I then knocked the truck from the back and
that day it was
rainy.' (sic).
11.
In her second statement she adds some more detail to describe the
manner in which in which the accident was caused, stating
in the last
paragraph: 'The accident was caused by the sole negligence of the
driver of the blue taxi in that he turned right at
the crossing when
he was not allowed to do so.'
12.Mr
Jacobs in his second statement, however, opines that: 'Both the truck
and the taxi were negligent and caused the accident/
He, too, made no
express statement in his police affidavit that ascribed negligence to
either the taxi or the truck or both.
13.The
Form 1 was signed by the appellant on the 17th February 2005. In
paragraph 2 thereof, which requires particulars to be supplied
of the
motor vehicle the driving of which caused the claim to arise, the
claimant completing the form is presented with two options.
The
first, addressed in sub-paragraphs (a), (b) and (c), invites the
claimant to provide the registration letters and numbers,
the make,
the type of body and the name of the owner of the vehicle at the time
of the accident, as well as the name of the driver
on that occasion.
The second option is aimed at the situation in which neither the
identity of the owner or the driver of the vehicle
could be
established and is provided for in sub-paragraph (d). The claimant is
requested to record any additional information concerning
the vehicle
that may be available and to explain what steps were taken to
establish the identity of the owner of the motor vehicle.
14.Claimant
(or her representative) completed sub-paragraphs (a) and (c) of
paragraph 2, identifying the truck by its registration
letters and
numbers, by its body and by the identity of the driver at the time of
the accident. In respect of any information relating
to an
unidentified vehicle that might have caused the accident,
sub-paragraph (d) was completed with the words lnot applicable'.
15.Form
1 therefore clearly conveys that the accident was caused by the truck
identified in paragraph 2 thereof and that claimant
alleges that
either the driver or the owner of the truck, or both, are guilty of
negligence that caused the accident to occur.
16.The
respondent acknowledged receipt of the claim on the 24' October 2005.
17.On
the 19th May 2006 respondent repudiated liability in writing on the
grounds that the appellant was the sole cause of the collision.
18.On
the 17th August 2006, the respondent addressed a letter to
appellant's attorneys of record, reiterating the repudiation of
liability in the following terms: 'On (sic) 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 the
insured driver and instead, he is the one that was rear
ended by your
client.'
19.No
further communication of note was exchanged between the parties until
summons was issued in 2007. In her particulars of claim
appellant
alleged that the unidentified blue taxi was the sole cause of the
collision and relied upon section 17(1) (b) to establish
her
entitlement to compensation by the respondent..
20.Respondent
raised a special plea that the appellant had failed to file a claim
in these terms prior to issuing summons and that
she had to be
non-suited as a result thereof.
21.The
trial court agreed and dismissed appellant's claim with costs.
22.
In her notice of appeal the unsuccessful plaintiff suggests that in
spite of the way in which her Form 1 was completed, the
information
conveyed therein to the respondent constituted substantial compliance
with the statutory requirements of such notice.
Respondent was thus
supplied with sufficient particulars in the Form and the affidavits
that accompanied it to enable it to properly
investigate the
circumstances and cause of the accident.
Respondent
should therefore have been held, so the argument ran, to have been
supplied with sufficient information to enable it
to meet plaintiff's
case.
23.Respondent
supported the court a quo's decision and argued that it had never
been appraised in the statutorily prescribed fashion
of plaintiff's
intention to claim compensation for damages caused by an unidentified
vehicle.
24.When
considering the respective arguments the court must bear in mind that
the Act represents social legislation aimed at the
widest possible
protection and compensation against loss and damages for the
negligent driving of a motor vehicle....1 (per Froneman
J (as he then
was) quoted in Road Accident Fund v M obo M
[2005] 3 All SA 340
(SCA)
at para [12]). The court must therefore not be astute to find grounds
to deny a bona fide claimant for compensation the remedy
provided for
in the Act.
25.On
the other hand the respondent is funded by and administers public
funds obtained from the taxpayers' pockets. It must therefore
take
care that it is not duped by dishonest plaintiffs or greedy legal
representatives prepared to fraudulently enrich themselves
from the
funds intended to compensate road accident victims, the majority of
whom are poor. It must also guard against honest but
mistaken claims
advanced by persons who may not be entitled to any award because they
cannot bring their claim within the ambit
of the Act and the
Regulations promulgated thereunder.
26.The
Act protects accident victims who suffer damage as a result of a
motor vehicle accident by interposing the Fund in the place
of a
negligent driver or owner whose actions caused the victim's claim to
arise. Section 21 of the Act prevents a third party from
claiming any
compensation from an identified driver or owner whose vehicle could
be identified and decrees that the Fund only may
be held liable in
such instance. Where such vehicle could not be identified the victim
would at common law be without a remedy,
but the Act creates a source
of compensation by allowing a claim against the Fund. Cameron JA (as
he then was) defined the remedies
that are available under the two
scenarios as follows in Geldenhuys & Joubert v Van Wyk and
Another; Van Wyk v Geldenhuys &
Joubert and Another
2005 (2) SA
512
(SCA) at paras [10] to [12]:'
'[10]
The provisions ofs 21 are important to understanding the impugned
regulation. This provides that when a third party is entitled
to
claim compensation, he or she may not claim from the owner or driver
or the driver's employer, unless the Fund is unable to
pay. This has
significant implications. In a case where the claimant can trace the
vehicle or the driver, the provision means that
the claimant loses a
valid claim against an identifiable wrongdoer. In effect the Act
substitutes the Fund as surrogate for a known
wrongdoer, and replaces
an enforceable common law claim with a statutory claim against itself
[11]
In the case of an unidentified vehicle, this by definition is not so.
There is no identifiable wrongdoer to sue, and the injured
party is
remediless. The legislation instead creates a claim for compensation
where otherwise there would have been none. The Fund
is not
substituted for a wrongdoer in hand, but intervenes to offer recourse
where none existed before.
[12]
It is for this reason that the distinction the legislation makes
between identified vehicle and unidentified vehicle cases
is
fundamental. This Court's decisions have repeatedly underscored its
implications, most recently in Bezuidenhout v Road Accident
Fund. The
legislation specifies that loss or damage involving identified
vehicles must be compensated on terms expressly set out
in the
statute itself ('subject to this Act'). By contrast, with
unidentified vehicle claims, the Minister is given power to subject
payment of compensation to a regulatory scheme, and thus to determine
the conditions subject to which compensation may be granted
('subject
to any regulation made under s 26').' (Footnotes Omitted).
27.
Different prescriptive periods apply in respect of the two instances.
If a vehicle the driving of which is alleged to have caused
damage
and loss is identified the prescriptive period is three years for the
lodging of a claim as provided in section 23 (1) of
the Act. Once
section 17(1)(b) applies, the prescriptive period is two years:
In
unidentified vehicle cases, by contrast the Minister has determined
that, to be valid, claims of adults and minors alike must
be sent or
delivered to the Fund within two years. Once so lodged, claimants
have a five-year period from the incident within which
to issue
summons (regs 2(3) and 2(4)). The regulatoty scheme thus differs in
two ways from the periods the statute determines for
the prescription
of identified vehicle claims. First the two-year pehod 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.
In both cases, however,
once a claim is lodged in terms ofs 24, there is a five-year pehod
from the date of the accident within
which summons must be issued (s
23(3) in the case of identified vehicles; reg 2(4) in the case of
unidentified vehicles'. (Geldenhuys,
supra,
para [15].
28.
The provision of a shorter prescriptive period for claims arising
from the driving of an unidentified motor vehicle is rational
and
warranted, as Harms J
A (as he then was) stated in Mbatha v
Multilateral Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997 (3) SA 713
(SCA) at
718 H-J:
'....
there are good reasons for having stricter requirements for
unidentified vehicle cases..................... 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 (Terblanche v Minister van Vervoer
en 'n ander
1977 (3) SA 462
(T) 470B-C). But the argument also fails
on the facts - the two-year time-limit for the lodging of claims
applied when the regulation
was promulgated in 1989 to both cases.'
29.
It is therefore clear that care must be taken to inform the Fund of
the correct nature of the claim it is proposed to advance
against
it. The Act prescribes in section 24 read with section 19(f) thereof
the nature of the information that must be provided
to the Fund and
the way in which such information must be presented to constitute a
valid notification:
24.
Procedure—(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.
(2)
(a) The medical report shall be completed on the prescribed form by
the medical practitioner who treated the deceased or injured
person
for the bodily injuries sustained in the accident from which the
claim arises, or by the superintendent (or his or her representative)
of the hospital where the deceased or injured person was treated for
such bodily injuries: Provided that, if the medical practitioner
or
superintendent (or his or her representative) concerned fails to
complete the medical report on request within a reasonable
time and
it appears that as a result of the passage of time the claim
concerned may become prescribed, the medical report may be
completed
by another medical practitioner who has fully satisfied himself or
herself regarding the cause of the death or the nature
and treatment
of the bodily injuries in respect of which the claim is made.
(b)
Where a person is killed outright in a motor vehicle accident the
completion of the medical report shall not be a requirement,
but in
such a case the form referred to in subsection (1) (a) shall be
accompanied by documentary proof, such as a copy of the
relevant
inquest record or, in the case of a prosecution of the person who
allegedly caused the deceased's death, a copy of the
relevant charge
sheet from which it can clearly be determined that such person's
death resulted from the accident to which the
claim relates.
(3)
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.
(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.
(c)
A form on which ticks, dashes, deletions and alterations have been
made that are not confirmed by a signature shall not be regarded
as
properly completed.
(d)
Precise details shall be given in respect of each item under the
heading "Compensation claimed" and shall, where applicable,
be accompanied by supporting vouchers.
(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.
(6)
No claim shall be enforceable by legal proceedings commenced by a
summons served on the Fund or an agent-fa)
before
the expiry of a period of 120 days from the date on which the claim
was sent or delivered by hand to the Fund or the agent
as
contemplated in subsection (1); and
(b)
before
all requirements contemplated in section 19 (f) have been complied
with:
Provided
that if the Fund or the agent repudiates in writing liability for the
claim before the expiry of the said period, the third
party may at
any time after such repudiation serve summons on the Fund or the
agent, as the case may be.
30.
Section 19(f) excludes liability on the part of the Fund
"
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 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.
31.
Section 17 in turn decrees that
'(i)
17. Liability of Fund and agents—(1) The Fund or an agent
shall— (a) subject to this Act, in the case of a claim
for
compensation under this section arising from the driving of a motor
vehicle where the identity of the owner or the driver thereof
has
been established;
(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: Provided that the
obligation of the Fund to compensate a third party for non-pecuniary
loss shall be limited to compensation
for a serious injury as
contemplated in subsection (1A) and shall be paid by way of a lump
sum
(ii)
2. Further provision for liability of Fund in terms of section 17 (1)
(b)
(1)
(a) 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 cause of action arose.
(b)
A right to claim compensation from the Fund under section 17 (1) (b)
of the Act in respect of loss or damage arising from the
driving of a
motor vehicle in the case where the identity of neither the owner nor
the driver thereof has been established, shall
become prescribed upon
the expiry of a period of two years from the date upon which the
cause of action arose, unless a claim has
been lodged in terms of
paragraph (a).
(c)
In the event of a claim having been lodged in terms of paragraph (a)
such claim shall not prescribe before the expiry of a period
of five
years from the date upon which the cause of action arose.
(2)
Notwithstanding anything to the contrary contained 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 within two years from the date upon
which the cause of action arose irrespective
of any legal disability
to which the third party concerned may be subject.'
32.
The law is clear that the submission of a claim form, Form 1 under
the present statute, is peremptory, while the requirement
regarding
its completion is directory in the sense that substantial compliance
with the requirements is sufficient to enable the
victim of a motor
vehicle accident to claim compensation:
'Notwithstanding
the wording of art 62(d) (i) and the corresponding wording of its
predecessors, in a long line of decisions in
this and other Courts
pre- and post-1978 it has been held that (1) the submission of a
claim form is a peremptory requirement;
(2) the prescribed
requirements in regard to completion of the form are directory; and
(3) what is required is substantial compliance
with such
requirements. (See Rondalia Versekeringskorporasie van Suid-Afrika
Bpk v Lemmerl966 (2) SA 245 (A); Nkisimane and Others
v Santam
Insurance Co Ltdl978 (2) SA 430 (A). particularly at 435F-436E; AA
Mutual Insurance Association Ltd v Gcanoal980 (1) SA
858 (A) at
865B—F; Evins v (2) SA 204 (C)f where the relevant principles
are conveniently and concisely set out at 210B--211F,
and Moskovitz v
Commercial Union Assurance Co of SA Ltd1992 (4) SA 192 (W).) In
Nkisimane's case supra at 436E—F, Trollip
JA doubted that it
was ever the intention that a defectively completed form could be
relied upon as an additional defence to a
claim for compensation.
It
also appears from the authorities to which I have referred that the
test for substantial compliance is an objective one (AA Mutual
Insurance Association Ltd v Gcanga (supra at 865H)). Broadly
speaking, the question must be posed whether sufficient particularity
has been furnished to enable a reasonable insurer to consider its
position in relation to the claim before it becomes involved
in
litigation, and to enable it to investigate the claim, if necessary.
Differently put, would a reasonable insurer have been prevented
by
any omission or inaccuracy in the claim form from properly
investigating the claim and determining its attitude towards it?"
per Smalberger JA in
SA
Eagle Insurance Co Ltf v Pretorius
[1997] ZASCA 107
;
1998 (2) SA 656
(SACA) at 663 A-F.
33.
Seen in its correct light the question of whether there was
substantial compliance with the requirements of sections 24 and
17 of
the Act does not arise in the present matter at all. Rather, as Mr
Snyckers SC for the respondent has pointed out, the question
is
whether Form 1 correctly indicated that the claim to be instituted by
the appellant was one in terms of section 17(1)(b) rather
than
17(1)(a). 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
section 17(1 )(a) or 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.
35.
Counsel for the appellant submitted that the affidavits provided by
appellant and Mr Jacobs to the respondent contained sufficient
information to enable the respondent to conclude that the claim that
would be instituted related to an accident caused by an unidentified
vehicle, in spite of the express indication in Form 1 filed on behalf
of the appellant to the contrary.. Reference was made in
this regard
to the fact that section 19 of the Act requires a claimant in
sub-section (f) thereof to file an affidavit setting
out the
particulars of the way in which the accident occurred. A failure to
do so is fatal to the claim for compensation .
36.
At this stage of the argument, the Court raised a number of specific
issues and requested the parties to deal therewith. The
hearing was
postponed for a month to enable the parties to address these
questions. Five points were identified:
36.1Is
there any authority which deals specifically with the question of
substantial compliance concerning the claim form and the
statutory
affidavit after the enactment which made the furnishing of an
affidavit a requirement?
36.2
What is the effect of the statutory affidavit which a claimant is
obliged to present to the Fund, setting out all relevant
facts in
respect of the accident concerned? More particularly, would a
claimant be non-suited if he/she failed to complete a claim
form at
all, but provided full information covering all aspects that are
sought in the claim form in an affidavit?
36.3
If all the relevant information is provided in the statutory
affidavit rather than in Form 1, are the authorities that regard
the
filing of a duly completed form as peremptory still applicable to a
case like the present?
36.4
In which respect can the respondent in the present case claim to have
been prejudiced by the incorrect information relating
to the accident
being supplied in the claim form, when the correct information was
supplied in full in the accompanying affidavit?
36.5
The requirement to file a statutory came into force after the
judgments in SA Eagle Insurance, supra and Multilateral Motor
Vehicle
Accident Fund v Radebe
1996 (2) SA 245
(A). Has the introduction of a
statutory requirement to supply the respondent with an affidavit
changed the law as laid down in
these decisions?
37.
Mr Snyckers SC elegantly formulated the essence of these five issues
in the respondent's heads of argument: the pertinent question
to ask
is whether material contained in the documents attached to Appellants
claim form can (and did) convert the claim from one
that was
unambiguously a claim under section 17(1)(a) in the claim form to a
claim under section 17(1)(b).'
38.
In a helpful summary, Mr Snyckers SC traced the legislative history
leading to the introduction of subsection 19(f) of the present
Act:
38.1
The Compulsory Motor Vehicle Insurance Act 56 of 1972 introduced the
principle of allowing the MVA Fund to compensate victims
of motor
vehicle accidents caused by uninsured or unidentified vehicles.
Section 23(c)(ii) of this Act provided that the insurers
would not be
liable if claimants failed to provide copies of all medical reports
relating to claims arising from the accident.
The regulations
published in terms of this Act in turn allowed the MVA Fund to
require a sworn statement or other proof of the
facts establishing
the Fund's liability. A failure to comply would be fatal to the
claim.
38.2
The regulations promulgated under the successor of the 1972 Act, the
Motor Vehicles Accident Act 84 of 1986 required, for the
first time,
an affidavit to be delivered to the insurer to be delivered with the
claim form, or within 14 days of being able to
do so. Such affidavit
had to set out fully all particulars giving rise to the claim. A
failure to comply led to the exclusion of
the insurer's liability.
38.3
The next act was the Multilateral Motor Vehicle Accident Fund Act 93
of 1989, which placed the MMF Agreement in a schedule
to the Act. The
agreement contained a similar condition as in the previous
dispensation in Article 48(f)(ii) thereof. Failure to
comply
therewith visited the claimant with unenforceability of the claim.
The 1989 Act furthermore introduced Regulation 3(1)(a)(iii),
requiring an affidavit to be filed with the police within 14 days
after an the occurrence of an accident.that was allegedly caused
by
an unidentified vehicle. The successor of this regulation became
regulation 2(1 )(c) promulgated in terms of the present Act
and was
ruled unconstitutional in Engelbrecht v Road Accident Fund
2007 (6)
SA 96
(CC).
38.4
The present
Road Accident Fund Act 56 of 1996
retains the condition
that an affidavit must be provided to the Fund in substantially the
same terms as it predecessor in
section 19(1)(f).
0i
n; line-height: 200%">
39.
While the delivery and content of an affidavit was held to be
directory in Moskovitz v Commercial Union Assurance Co of SA Ltd
1992
(4) SA 192
(W), (but held that the delivery of an unsworn statement
amounted to a complete failure to comply with the condition, which
could
therefore not be regarded as substantial compliance), Kroon J
held in Nonxago v Multilateral Motor Vehicle Accidents Fund
[2005] 4
All SA 567
(SE) that the delivery of the affidavit was a peremptory
requirement.
40.
Bearing in mind that the affidavit need not be supplied if the
claimant is not able to supply one it might be argued that the
Moskovitz decision supra should be preferred to the finding in
Nonxago, but as that issue does not arise directly in this matter,
no
final judgment need be pronounced upon this aspect.
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
section 17(1)(a)
on the one
hand, and
section 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.
43.
Even if this finding were incorrect, and the issues before us were to
be approached upon the basis that the affidavit could
supplement any
insufficient information contained in the claim form, or could in
fact correct any error in the claim, the facts
of this matter would
preclude a finding in appellant's favour. As has been recorded above,
four affidavits were filed in all by
appellant and Mr Jacobs. Their
contents are not harmonious and contain contradictory averments
regarding the accident.
44.
The affidavits submitted to the respondent were in fact considered by
the respondent's claim handler, as is evident from the
letter
rejecting the appellant's claim, quoted above. The critical feature
of this letter is the reference to the truck identified
in the claim
form as the vehicle the driving of which caused the accident. The
claims handler refers to the fact that this truck
was 'rear-ended\
This letter must have set the alarm bells ringing in the office of
appellant's attorney - it clearly informed
the addressee that the
respondent accepted, on the basis of the information supplied to it,
that it was dealing with a claim in
terms of
section 17(1)(a).
45.
The appellant failed to appreciate that her claim form conveyed the
incorrect information to the respondent. Even if the most
lenient
approach were to be adopted to the manner in which her claim was
submitted the respondent's special plea was and remains
unanswerable.
46.
The result is that the appeal must fail
47.
The following order is made:
The
appeal is dismissed with costs, including the costs of two counsel.
E
Bertelsmann
Judge
of the High Court
I
agree
FG
Preller
Judge
of the High Court
I
agree
P
Mabuse
Judge
of the High Court.