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[2009] ZAGPJHC 24
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Tusevele v Van Der Merwe (08/14641) [2009] ZAGPJHC 24 (8 June 2009)
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: 08/14641
In the matter between:
LUBIKU TUSEVELE Plaintiff
and
SCHALK WILLEM VAN DER MERWE Defendant
_____________________________________________________________
JUDGMENT
____________________________________________________________
MATHOPO J:
[1]
This
is an action for professional negligence against the defendant an
attorney arising out of a motor accident claim which has
prescribed.
BACKGROUND
[2]
On
the 22
nd
June 2002, at or about 06H00, the plaintiff a driver of a motor
vehicle bearing registration numbers KVB 377GP, was involved in
a
motor accident with motor vehicle, a BMW, allegedly being driven by
one Jerry residing at 500 Bakari Court, Cavendish Street,
Mens
Street, Yeoville. The accident happened at the robot controlled
intersection of Rockey and Bezuidenhout Street, Bellview,
Johannesburg. The plaintiff sustained bodily injuries as a result
and instructed the defendant, attorney Van der Merwe.
[3] On the 2
nd
September 2002 attorney Van der Merwe instituted a third party claim
against the Road Accident Fund.
[4] On the 13 December 2002, the
defendant delivered by hand the claim documents to the Road Accident
Fund, at Johannesburg. The
Road Accident Fund affixed their stamp on
the claim documents as proof of receipt of the claim.
[5] According to paragraph 2 of the
claim form (RAF 1), the motor vehicle which collided with the
plaintiff is described as a
BMW Sedan, driven by Jerry of 500 Bakari
Court, Cavendish Street, Mens Street, Yeoville, the registration
numbers were not inserted,
neither was the accident report from
Yeoville Police Station annexed to claim documents but the case
number was stated.
[
6] Paragraph
2 of the claim form, forms the central or focal point of the dispute
between the parties.
[
7] It
is common cause and not in dispute that after lodgement of the claim,
the defendant wrote no less than 3 letters to the Road
Accident
requesting settlement proposals or an indication whether there are
any outstanding requirements or not. The Road Accident
fund did not
advise the defendant whether there were any outstanding requirements
affecting the validity of the claim or not.
[
8] On
the 22
nd
July 2005, the Road Accident Fund repudiated liability of plaintiff’s
claim for the following reasons “
Hit
and run” - No summons issued before date of prescription
”.
[9
]
The plaintiff terminated the mandate of the defendant and
instructed his present attorneys Kraut in August 2005 to proceed
with
his claim.
[10
] On
the 17
th
August 2005, The Road Accident Fund following an enquiry by the
plaintiff attorneys advised them that the claim had become
prescribed.
[11
]
On the 3
rd
March 2006, the plaintiff’s attorneys Kraut wrote to the Road
Accident Fund seeking to persuade them to re-entertain the
claim,
alleging that the repudiation was based on the erroneous facts and
stated as follows in their letter
2
. Kindly
be advised that your offices
erroneously
repudiated our clients claim on the mistaken basis that the claim was
a hit and run and as no summons was issued before
date of
prescription the said claim had prescribed.
3
. We
are at a loss as to why you regard this matter as a
‘hit
and run’
as the MMF1 form, police report and Annexure ‘A2’ of the
police report, being our client’s affidavit, clearly
states
that a BMW motor vehicle bearing registration letter and number JKT
690GP collided with our client’s motor vehicle.
4
. Kindly
re-open your file and furnish us with your offer of settlement as a
matter of urgency as our client has been prejudiced
as a consequence
of the aforegoing.
[12]
The
Road Accident Fund refused to re-entertain the claim and adopted the
attitude that it had prescribed. No summons were issued
against the
Road Accident Fund by Kraut Attorneys with the result that five (5)
years expired on the 21
st
June 2007 and the claim been prescribed.
[1
3]
The plaintiff then instituted the present proceedings against the
defendant on the basis that he negligently submitted a defective
or
insufficient claim to the fund, because the defendant failed to
ascertain the registration numbers and identity of the driver
of the
BMW vehicle by obtaining a copy of the accident report from Yeoville
Police Station, notwithstanding that the defendant,
was at all
material times aware or should reasonably have been aware that the
accident report was available and contained relevant
in formation
from the police. In a nutshell, the plaintiff alleges that the
defendant failed to comply with the provisions of
he section 17(1)
and 24(1) to 4 of the Act and Regulations.
[14] The plaintiff case is that the
defendant did not substantially comply with the requirements of the
Act when he submitted
the claim and due to its deficiency or lack of
sufficient information in paragraph 2 of the claim form, the Road
Accident Fund
dealt with the claim as a hit and run and repudiated
liability on the 20
th
July 2005.
[1
5]
The defendant denied any negligence or liability and averred that he
complied with all the requirements of the Act and Regulations
when he
timeously lodged with the fund. In particular the defendant pleads
that he endeavoured to obtain the registration numbers
of the motor
vehicle, particulars of the driver or owner of the offending motor
vehicle and thus could not insert them in paragraph
2 of the claim
form at the time when the claim was submitted
EVIDENCE
[16
]
The plaintiff did not give evidence it being common cause between
the parties that the merits of his claim were not in dispute.
Mr
Jasper Niewoudt, the Road Accident claim handler and Inspector
Abrahams gave evidence in support of the plaintiff’s claim.
EVIDENCE FOR THE PLAINTIFF
[1
7] Mr
Niewoudt, the Road Accident Fund claim handler testified that he did
not personally deal with the plaintiff claim and that
he had no
personal knowledge of what the claim’s handler did nor did not
do. His evidence was based on the interpretation
of the file. The
essence of his evidence is that the Road Accident Fund after the
claim was submitted to it did not object to
the validity of the
plaintiff’s claim and according to section 24(5) of the Act,
the claim is in law deemed to be valid in
all respects. He further
gave evidence that the Road Accident Fund wrote one letter to the SAP
requesting inter alia, the police
report, plan and key and no follow
ups were made by the claim’s handler. Again no letter was
written to the defendant despite
the latter requesting information
regarding the outstanding requirements if any. According to his
interpretation, the claim’s
handler repudiated liability
because the identity of the driver or owner could not be established.
He disagreed with the reasons
stated in the letter of repudiation as
not correct and stated that the claim’s handler made a mistake
by using a wrong pro-forma.
He again made reference in his evidence
to a note on the file which seemed to suggest that the repudiation
was based on the failure
by the plaintiff to comply with regulation
2(1)(c) (the Thugwana Judgment).
[1
8]
During cross examination he conceded that, with regard to compliance
with Regulation 2(1)(c), that the plaintiff or the defendant
were
never called upon to comply with it. He conceded further that, as
regards the investigations relating to the merits, the
Road Accident
Fund did not do anything save writing one letter to the police on
the 20 November 2004, i.e exactly 2 years and
4 months after the
claim had been submitted. He further conceded that after writing one
letter to Jerry which was not returned
or responded to, the Road
Accident Fund did nothing and no assessor was sent out to check the
address or whereabouts of Jerry.
[19] He again conceded that even
after the defendant had written to the fund requesting an offer of
settlement or indication as
to any outstanding requirements to
finalise the claim, the fund did not follow it up. In fact according
to the file, nothing more
was done with regard to the investigations
of this claim. The next witness for the plaintiff was Inspector
Abrahams, the investigating
officer. He gave evidence that he
followed up the address of Jerry, the alleged offending driver of the
BMW. At his home he spoke
to his mother Ms Gwangwa who told him that
her son had left for Pretoria. Again when he went, he spoke to one
gentlemen who introduced
him as the father of Jerry and the latter
was still not present at home.
[20
]
During cross examination, he conceded that he did not attempt to
contact Jerry on the cell numbers in the docket and he also
did not
follow up on the information regarding the witness in particular the
passenger, who was with the plaintiff. According
to him the docket
was then closed as “undetected” due to lack of response
from the driver.
The following admissions were agreed
upon:
a) that the defendant caused the
letters in page 51,55,56,60,67 and 68 of the bundle to be sent to the
South African Police Yeoville.
b) that the defendant received
responses from the SAP and Metro Traffic Police Department and their
letters are on pages 53,54 and
57 of the bundle .
c) that the defendant never phoned or visited the
Yeoville police station to obtain a copy of the police docket.
d) that the defendant never followed up on the
information as to the identity of Jerry as given to him by the
plaintiff.
e) that the defendant never
telephoned or visited the Road Accident Fund offices.
[21] As a result of the aforesaid admissions the
defendant closed his case without leading any evidence.
[22] Mr Kraut who appeared on behalf
of the plaintiff argued that, due to the deficiency in the claim
form, a reasonable insurer
in the position of the claim’s
handler or Mr Niewoudt would have regarded the claim as a hit and run
in terms of Section
17(1) (b) instead of an identifiable claim in
terms of Section 17(1) (a). He submitted further that according to
the admitted
facts, the defendant consulted once with the plaintiff
and his failure to attend SAP Yeoville or telephone them to ascertain
the
details of the registration numbers of the motor vehicle and the
driver or owner, amounts to negligence. He argued that the fact
that
the Road Accident Fund did not object to the claim within 60 days of
its lodgement in terms of Section 24(5) of the Act, cannot
assist the
defendant because the claim form was deficient or insufficient and
thus the Road Accident Fund were entitled to treat
and regard it as a
hit and run..
[23] When I asked him why the
plaintiff’s present attorneys did not issue summons against the
Road Accident Fund since five
(5) years had not lapsed since the date
of accident, he responded by saying that he advised them not to do
so, because the defendant
did not substantially comply with the Act
and Regulations when submitting the claim documents which were
invalid and thus unenforceable.
[24] Mr Becker who appeared on behalf
of the defendant, submitted that the defendant substantially complied
with the Act and Regulations
and that there was sufficient
information on the claim documents to enable the Road Accident Fund
to commence its investigations.
According to the plaintiff’s
witness Mr Niewoudt, the Road Accident Fund in fact commenced its
investigations by writing
to the Police and the driver of the
offending motor vehicle, Jerry. He submitted that the fund was thus
in a position to decide
whether to resist, settle or compromise the
claim. This aspect he argued, find support in the contents of the
Road Accident Fund
file, as interpreted by Mr Niewoudt. Again he
argued that even on the evidence of Mr Niewoudt, there was
substantial compliance
because the Road Accident Fund did not within
60 days object to the validity of the plaintiff’s claim thus
lending credence
that it was valid claim. Again, even when the
defendant enquired from the fund about the outstanding requirements
to finalise
the claim, the fund did not object to its validity and
neither was there evidence on the file that the claim’s handler
was
not satisfied with the plaintiff compliance with the Act.
[2
5]
He submitted further that no negligence could be attributable to the
defendant because on the admitted facts he did not adopt
a supine
attitude to the claim but sent no less than 6 or 7 letters to the SAP
and Metro Police enquiring about the police documents.
He argued
that his action or inaction as alleged by the plaintiff is not what
caused the difficulty because plaintiff’s
witness Inspector
Abrahams, testified that he could not locate the driver despite
several visits to his home.
CONCLUSION
[2
6]
In accept that when the defendant submitted the claim on the 13
December 2002, he substantially complied with the requirements
of the
Act and Regulations. In my view if the Road Accident Fund had or was
of the view that there was any deficiency in the claim,
it could have
advised the defendant’s of any outstanding requirements
affecting the validity thereof.
[27] Its failure to do so, and the
fact that Attorneys Van der Merwe wrote several times to them
requesting an offer of settlement
or attitude to the claim clearly
shows that the claim as submitted by him was to all intents and
purposes valid in terms of Section
24(5) of the Act which provides as
follows:
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.
[28] In my view the information in
paragraph 2 of the claim form was sufficient to enable the Road
Accident Fund to commence its
investigations. I do not agree with
the submission made by the plaintiff that a reasonable insurer in the
position of the claim’s
handler or Mr Niewoudt could have
treated and regarded the claim as a hit and run. This submission is
negated by the evidence
of Mr Niewoudt which is to the effect that
after the claim was lodged, letters were written to the SAP, Yeoville
and Jerry. On
the authority of
Constantia
Insurance C Ltd v Nohamba
1986 (3) SA 27
A 39 F-I
,
the information supplied to the fund was sufficient to enable it to
make the necessary enquiries in order to decide whether to
resist or
settle the claim. The fact that investigations were commenced by the
fund, support, in my view the position adopted
by the claim handler
that the claim was valid in all respects pursuant to section 24(5) of
the Act.
[29] It is sufficient if the
statutory requirements concerning the claim form (in particular
paragraph 2) are substantially complied
with although not exactly or
precisely. In
AA
MUTUAL INSURANCE ASSOCIATION LTD v GCANGA 1980 (1) SA AT 865 G-H
the test was stated as follows with regard to substantial compliance
i.e whether by looking at the MVA 13 form itself, having regard
to
all he information furnished the reasonable insurer would be
prevented by the inaccuracy therein from properly investigating
the
claim and determining its attitude towards it.
[30] In the present case, it cannot
be successfully contended that the Road Accident Fund was precluded
from making such investigations
because according to Mr Niewoudt such
investigations were commenced after the claim was lodged. There
was no evidence that the
claim’s handler looked at the claim
form and recorded that it was deficient or lacking.
[31] Again if one looks at the
information in paragraph 2 of the claim form it cannot be said that
the fund was correct in dealing
and treating the claim as a hit and
run, because the name as well as the address of the driver were
indicated. The plaintiff’s
witness, Mr Abrahams states that
after he was assigned the docket, he went to the address of Jerry and
spoke to his parents on
different occasions or dates. His parents
did not deny knowledge of him but informed him that he had gone to
Pretoria. This could
not have been a hit and run as alleged by the
plaintiff or the Road Accident Fund because not only was the identity
of the driver
known but his address also. In my view an unidentified
vehicle denotes a motor vehicle of which the identity of the driver
or
owner is unknown. In the present matter, the Road Accident Fund
could not hide behind its negligent failure to make investigations
as
a reasonable insurer, to attack the validity of the claim. Even if
that was so, as the plaintiff wants to allege, this point
was not
raised by the fund in all its correspondences with the defendant.
[32] I therefore cannot find any
negligence on the part of the defendant. As a prudent attorney he
submitted the claim and inserted
all the information in paragraph 2
which was clearly and sufficient enough for the fund to commence its
investigation. In addition
he wrote several letters to the police
and Johannesburg Metro Police requesting the police report. I am
unable to agree with the
plaintiff that his failure to attend or
telephone the offices of SAP Yeoville amount to negligence. In my
view even if he had
gone there he would not have been able to obtain
any better information than the one supplied to him by the plaintiff.
Inspector
Abrahams with all the police machinery at his disposal
was also unable to locate the driver.
[33]
In
the light of the aforegoing it follows that the submission by the
plaintiff is ill-founded and falls to be rejected. I cannot
find any
reason why the plaintiff did not issue summons against the fund after
the latter refused to re-entertain the claim because
a period of five
(5) years had not yet expired then.
[34]
Consequently
I cannot find that there was any negligence on the part of the
defendant.
ORDER:
The plaintiff’s claim is dismissed with costs.
____________________________
RS MATHOPO
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : MR KRAUT
instructed by : Kraut Attorneys
For the defendants : MR BECKER
instructed by : Maluleke Msimang & Associates
Date of hearing : 05 JUNE 2009
Date of Judgment : 08 JUNE 2009