Road Accident Fund v Scholtz (111/2002) [2003] ZASCA 71 (3 June 2003)

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[2003] ZASCA 71
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Road Accident Fund v Scholtz (111/2002) [2003] ZASCA 71; 2003 (5) SA 362 (SCA) (3 June 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case
no: 111/2002
In the matter between:
THE ROAD ACCIDENT
FUND
Appellant
and
RHESIA
SCHOLTZ
Respondent
_______________________________________________________
Coram
:
Streicher,
Navsa JJA and Jones AJA
Date of hearing:
20
May 2003
Date of delivery:
3
June 2003
Summary:
Interpretation
of articles 55, 56 and 57 of Multilateral Motor Vehicle Accidents
Fund Act 93 of 1989 ─ five-year prescription period
in article 57
does not run against a minor.
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA:
[1] The appellant ('the Fund') is a statutory
insurer established in terms of
section 2
of the
Road Accident Fund
Act 56 of 1996
and is the successor to the Multilateral Motor Vehicle
Accidents Fund, which was established in terms of the Multilateral
Motor Vehicle
Accidents Fund Act 93 of 1989 ('the Act').
[2] The
respondent was allegedly injured in a motor vehicle collision where
the identity of the driver who allegedly caused the collision
was
established. The respondent instituted a claim for compensation in
the Transvaal Provincial Division of the High Court against
the Fund
in terms of the Act, which at the time of the collision was the
applicable legislation. At the commencement of proceedings
in that
court the parties agreed that the issue of prescription raised in the
Fund's special plea should be separated from the merits
and
quantum
and should be heard first, against the backdrop of a stated case.
[3] Swart J, who heard the matter, decided the issue
of prescription against the Fund, dismissing the special plea with
costs. The
present appeal with the leave of this Court is against
that decision.
[4] The stated case as recorded by the Court below is set out
hereunder:
‘1. The collision occurred on 3 June 1994.
The plaintiff was born on 24 March 1976.
The plaintiff’s claim was to be adjudicated on in
accordance with the provisions of the Multilateral Motor Vehicle
Accident Fund
Act, Act 93 of 1989.
The plaintiff’s claim was timeously lodged with the
defendant on 29 February 2000.
The summons was served on the defendant on 20 July
2000.
It is the plaintiff’s contention that the summons was
served timeously.
The defendant contends that the summons was served at
the time when the plaintiff’s claim had already become
prescribed.’
[5] The
question in this appeal is which of the two contentions set out in
paras 6 and 7 of the stated case is correct. Chapter XVIII
of the
Agreement which has the force of law in terms of the Act is entitled
Prescription of Claim
and contains the applicable provisions,
the interpretation of which provides the answer. The three applicable
articles are set out
in the following three paragraphs.
[6] Article 55 provides:
‘Notwithstanding
the provisions of any other law relating to prescription, but subject
to the provisions of Articles 56 and 57,
the right to claim
compensation under Chapter XII from the MMF or an appointed agent in
respect of claims arising from the driving
of a motor vehicle in the
case where the identity of either the owner or driver thereof has
been established, shall become prescribed
upon the expiry of a period
of three years from the date upon which the claim arose.’
[7] Article 56 reads as follows:
‘Prescription
of a claim for compensation referred to in Article 55 shall not run
against ─
(a) a minor;
(b) any
person detained as a patient in terms of the provisions of mental
health legislation applicable within the area of jurisdiction
of a
Member; or
(c) a person under curatorship.’
[8] Article 57 provides:
‘Notwithstanding
the provisions of Article 55, no claim which has been lodged under
article 62 shall prescribe before the expiry
of a period of five
years from the date on which the claim arose.’
[9] As can be seen from the stated case the
respondent was a minor at the time of the collision. It was correctly
accepted by the
Fund that the three-year prescription period set out
in article 55 would in terms of article 56 (a) only start running
from the time
that she became a major. The respondent’s claim was
lodged with the Fund on 29 February 2000 in terms of article 62 of
the Act
by the completion of the prescribed forms and the submission
of the necessary information. In terms of article 55 read with
article
56 the claim was therefore lodged within a three-year period
after the plaintiff became a major.
[10] The summons as can be seen from the stated case
was issued on 20 July 2000, more than five years after the collision
but less
than five years from the time the respondent attained the
age of majority. It was contended by the respondent that, as was the
case
with the three-year period referred to in article 55, the
five-year period referred to in article 57 only starts running after
a
minor becomes a major and that consequently the summons was issued
timeously.
[11] The Fund contended that in terms of article 57
the five-year prescription period starts running from the time of the
event which
gave rise to the claim, namely, the collision, and unlike
the three-year prescription period in article 55 prescription in
respect
of the former is not suspended in the case of a minor, and
consequently the plaintiff's claim had become prescribed.
[12] The following are the submissions on behalf of the Fund in
support of the aforesaid contention:
Article 57 has not been made subject to article 56 with the result
that the suspension of prescription that operates in favour
of
minors and others with legal disabilities provided for in article 56
does not extend to article 57.
Article 57 does not itself provide for the prescription of a claim
and is therefore not qualified by the provisions of article
56.
Article 56 expressly states that the prescriptive period set out in
article 55 does not run against minors and others with legal
disabilities whilst there is no corresponding provision in respect
of article 57.
I shall deal with each of these submissions in turn.
[13] It is true that article 57 does not in terms state that it is
subject to article 56. However, article 55, including the
prescriptive
period referred to therein, has been made subject to
articles 56 and 57. It follows that article 55 is qualified by what
is set out
in those two articles. Its provisions must be read subject
to and in conjunction with the provisions of articles 56 and 57.
[14] There is no merit in the appellant’s submission that article
57 does not contain a prescriptive period. When articles 55,
56 and
57 are read together it is clear that the prescriptive period in
respect of claims referred to in article 55 is three years,
but in
the event of such a claim having been lodged under article 62, before
having become prescribed, the prescriptive period is
5 years subject,
however, to the provisions of article 56.
[15] The opening words of article 56 read: ‘Prescription of a claim
for compensation referred to in article 55 shall not run against
. .
.'. The appellant submitted that the words ‘referred to in article
55' qualify the word 'prescription'. For that reason, so
the
submission went, s 56 suspends the prescription period referred to in
s 55 and not the prescription period referred to in s 57.
I do not
agree. In my view the words 'referred to in article 55' qualify the
words 'a claim for compensation' and not the word ‘prescription’.
[16] Before their amendment in 1993 by Proclamation 62 of 16 July
1993, articles 55 and 56 read as follows (article 57 remained as
it
was):
’55. Notwithstanding the provisions
of any other law relating to prescription, but subject to the
provisions of Articles 56 and
57,
the right to claim
compensation under Chapter XII from an appointed agent in respect of
claims referred to in Article 13 (b)
shall become prescribed
upon the expiry of a period of three years from the date upon which
the claim arose.
56. Prescription of
a claim for
compensation under Article 13 (b) and Chapter XII shall not run
against
:
(a) a minor;
(b) any person detained as a patient in
terms of the provisions of mental health legislation applicable
within the area of jurisdiction
of a Member; or
(c) a person under curatorship.’
(emphasis added)
A ‘claim for compensation under article 13(b) and Chapter XII’ is
a claim 'contemplated in article 40 of the Agreement, arising
from
the driving of a motor vehicle in the case where the identity of
either the owner or driver thereof has been established.
[17] Reading article 57 with article 56 prior to its amendment there
can be no doubt that prescription in terms of article 57 did
not run
against a minor whose claim for compensation was a claim under
article 13(b) and had been lodged under article 62. Article
57
contains a prescriptive provision and article 56 specifically states
that prescription of such a claim shall not run against a
minor.
[18] In the amended article 55 the words ‘the right to claim
compensation under Chapter XII from an appointed agent in respect
of
claims referred to in article 13(b)' were replaced with the words
'the right to claim compensation under Chapter XII from the
MMF or an
appointed agent in respect of claims arising from the driving of a
motor vehicle in the case where the identity of either
the owner or
driver thereof has been established'. This amendment necessitated an
amendment of the description of the relevant claim
in article 56. In
terms of the resultant amendment the words ‘a claim for
compensation under article 13(b) and Chapter XII' were
replaced with
the words ‘a claim for compensation referred to in Article 55'.
Instead of unnecessarily repeating the long description
of the
relevant claim the amended article 56 simply describes the relevant
claim by reference to the description in article 55. If
the intention
was that the words 'referred to in Article 55' should qualify the
word 'prescription' that intention would, in the
light of prior
wording of the articles have been made clear by simply wording the
article: 'Prescription referred to in Article 55
shall not run . . .'
[19] It
follows that in terms of article 56 the running of both the
prescriptive period of 3 years and the period of 5 years provided
for
in articles 55 and 57 respectively in respect of a claim referred to
in article 55 are suspended during the minority of the claimant
─
provided, in the case of article 57, that the claim is a claim that
has been lodged under article 62.
[20] In
support of its submissions the Fund relied on an unreported judgment
of Stegmann J in the Johannesburg High Court in
Toerien and Others
v Padongelukkefonds (Case no: 28030/96-WLD)
. In that case the
learned judge was dealing with the unusual situation of plaintiffs
who sought an amendment of the pleadings after
he had made a ruling
on the merits of their claim. Stegmann J was concerned with the
question whether just cause was shown for the
amendments and found
against the plaintiffs. In his judgment he dealt briefly with
articles 55, 56 and 57 and concluded that the
five-year period set
out in article 57 runs against a minor. Stegmann J set out
the
provisions of the three articles in question in their entirety but
supplied no reasons for this conclusion. Counsel for the plaintiffs
in the case before Stegmann J appears to have made no submissions to
the contrary. If they were made the learned judge did not record
them. For the reasons set out earlier the conclusion reached by
Stegmann J about the meaning and effect of the three articles in
question is clearly wrong.
[21] For the reasons stated earlier the appeal must fail. The
following order is made:
1. The appeal is dismissed with costs.
______________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
STREICHER
JA
JONES
AJA