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[1994] ZASCA 80
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Swanepoel v City Council of Johannesburg, President Insurance Company Limited v Kruger (760/92,90/93) [1994] ZASCA 80; 1994 (3) SA 789 (AD); (27 May 1994)
79/94
Case No 760/92 and 90/93
IN THE
SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between
HENDRIK JAKOBUS
SWANEPOEL
Appellant
and
CITY COUNCIL OF
JOHANNESBURG
Respondent
and
PRESIDENT INSURANCE
COMPANY
LIMITED
Appellant
and
FRANCINA
SUSARAH CORLINA
KRUGER
Respondent
CORAM
:BOTHA, HEFER, EKSTEEN JJA et NICHOLAS, OLIVIER
AJJA
HEARD
: 17 MAY 1994
DELIVERED
:27 MAY 1994
JUDGMENT
HEFER JA/...
2
HEFER JA
;
In terms of sec 2 of the Multilateral Motor
Vehicle Accidents Fund Act 93 of 1989 an agreement entered into by the Republics
of South
Africa, Transkei, Ciskei, Venda and Bophuthatswana was ratified and
incorporated into the law of South Africa as if it were an Act
of Parliament.
The agreement established a common fund (the Multilateral Motor Vehicle
Accidents Fund - "the MMF") which was declared
a juristic person within the
territory of each of the contracting states. In terms of art 40 of the agreement
the MMF and its appointed
agents are obliged (subject to certain exclusions and
limitations not presently relevant) to compensate any person whomsoever for
any
loss or damage which he has suffered as a result of bodily injury to himself, or
the death or bodily injury to any other person,
caused by or arising from the
driving of a motor
3 vehicle anywhere within the area of
jurisdiction of the member states, if the death or injury is due to the
negligence or other
unlawful act of the driver or owner of the vehicle in
question.
The agreement was amended in several respects by
Proclamation 102 of 1991 which came into operation on 1 November 1991 (the
"effective
date"). In the present appeals we are concerned with the amendment of
arts 55 and 57 which brought about an extension of the period
of prescription of
claims for compensation. The main issue is whether the extended period is
applicable to claims which arose before
the effective date. In the case of
President Insurance Company Ltd v Kruqer
the court a
quo
(THIRION
J) in a judgment reported in 1994(2) SA 495 (D & CL) ruled that the extended
period was indeed applicable but in the
case of
Swanepoel v City Council of
Johannesburg
ELOFF JP came to a different conclusion
4 in a judgment reported in 1994(1) SA 468 (W).
It must be
pointed out at the outset that ELOFF JP's judgment is largely based on the
decision of this court in
Protea International (Pty) Ltd v Peat Marwick
Mitchell & Co
1990(2) SA 566, and on what is referred to therein at 570
B-C as "a general rule of construction ... [that] the operation of a statute
is
prospective, to apply only after its enactment (in
futuro
) unless the
legislator clearly expressed a contrary intention that the operation should be
retrospective to apply prior to its enactment
(in
praeterito
) ." However,
what required the attention of the court in that case was an amendment to the
Prescription Act 68 of 19 69 which affected
the date on which prescription
commenced in the context of a debt which had become due before the date of the
amendment. The situation
in the present cases is entirely different. We are
not
5 concerned with the date of commencement of the prescriptive
period nor, I may add, with the effect of the amendment on claims which
had
already become prescribed, nor with any other past event. Our sole concern is
the effect of the amendment on claims which, although
having admittedly arisen
before, had not become prescribed on the effective date. Viewed in this manner
it is difficult to understand
the relevance of the so-called rule against
retrospectivity. What arts 55 and 57 in their amended form in effect say, is
that, depending
upon whether a claim is lodged with an appointed agent in terms
of art 62 or not, the right to claim compensation shall henceforth
become
prescribed either three or five years after the claim arose. Its effect is
plainly prospective. But this does not entail that
existing rights, simply
because they accrued in the past, are not similarily affected;
6
the amendment relates, not to the date of the
accrual
before the effective date, but to the date of
the
expiry
of the rights thereafter. The
amending
statute is not "a retrospective statute because
part
of the requisites for its action is drawn from
time
antecedent to its passing" (per Lord Denman in
R v
St
Mary, Whitechapel
[1848] EngR 746
;
116 ER 811
at 814). This
principle
was adopted
inter alia
in
R v Grainger
1958(2) SA 443
(A) at 446 and
Adampol (Pty) Ltd v
Administrator,
Transvaal
1989 (3) SA 800
at 812 A-F and
817 I - 818
A.
In any event we must bear in mind that
"these rules of statutory exigesis are intended as aids in resolving any
doubts as to the Legislature's true intention. Where this
intention is
proclaimed in clear terms either expressly or by necessary implication the
assistance of these rules need not be
sought."
(per VAN WINSEN AJP in
Parow
Municipality v Joyce
and McGregor (Pty) Ltd
1974(1) SA 161 (C) at 165H -
7
166A, cited with approval
inter alia
in
Commissioner
for Inland Revenue v Insolvent Estate Botha
t/a 'Trio
Kulture
' 1990(2) SA 548 (A) at 559 H-J.) The
aim of
the interpretation of a statute is after all
to
discover the intention of the legislature
by
examining the language used in its general context
including the scope and purpose and, within limits,
the
background of the legislation (
Jaqa v Donges, NO
and
Another
;
Bhana v Dönges NO, and Another
1950(4)
SA 653 (A) at 662 G
ad fin
). This is what I will
now
proceed to do.
Before the amendment the provisions
relating to the prescription of claims were to be
found in arts 55, 57, 58, 59 and 60 read with arts 62
and 63 of the agreement. Arts 55, 57 and 63 read as
follows:
"Article 55
Notwithstanding the provisions of any other law relating to
prescription, ... the right
8
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 two years from the date upon which the claim arose:
Provided that prescription shall be suspended
during the periods referred to in
Article 63.
Article 57
Notwithstanding the provisions of Article 55, no claim which has been
lodged under Article 62 shall prescribe before the expiry of
a period of 90
(ninety) days from the date on which the appointed agent delivers to a claimant
or his representative per registered
post or by hand a notice to-
(a)
object to the
validity of the claim;
or
(b)
repudiate liability;
or
(c)
convey an offer of
settlement of the claim to the claimant or his
representative.
Article 63
No claim shall be enforceable by legal proceedings
commenced by a summons served on the appointed agent-fa) before the expiry of a
period of ninety (90) days as from the date on which the claim
was
9
sent or delivered by hand, as the case may be, to the appointed agent as
provided for in Article 62; and
(b) before all requirements of the appointed agent, as set out in Article
48 (f), requested within a reasonable period after receipt
of a claim have been
complied with: Provided that if the appointed agent repudiates in writing
liability for the claim before the
expiry of the said period, the claimant may
at any time after such a repudiation serve summons on the appointed
agent."
Articles 58, 59 and 60 were to the effect that, where a claim had become
prescribed under art 55, the claimant was entitled to apply
to court for relief
which could in "special circumstances" be granted in the form of leave to comply
with the provisions of art 62
(where those provisions had not been complied
with) or to serve process for the
10 enforcement of a claim before a
date determined by the court. In proceedings commenced by a summons served by
virtue of leave so
granted a plea of prescription could not be
sustained.
These provisions plainly derived from sections 14 and
15(2) of the Motor Vehicle Accidents Act 84 of 1986 which was in operation
immediately
before, and which was suspended by the Act with which we are
presently dealing. Sections 14 and 15(2) were severely criticized in
Ngantweni v National Employers' General Insurance Co Ltd
1991(2) SA 645
(C) at 648 F - 649 I. They often led to confusion in determining the date on
which claims became prescribed (cf Honey:
MVA Practice under Act 84 of
1986
at 103-111), the principal source of uncertainty being the provisions
of sections 14(2) (corresponding broadly to art 57 of the agreement)
and the
proviso to section 14(1)(a) (corresponding broadly to art 55)
11
read with sec 15(2) (corresponding broadly to art
63)
relating to the suspension of prescription. A
spate
of applications under art 58 ensued which were
often
unsuccessful by reason of the definition of
"special
circumstances".
What may perhaps be regarded as the main
achievement of the Proclamation is the simplification
of the provisions relating to prescription. The
amended arts 55 and 57 then read as follows:
" Article 55
Notwithstanding the provisions of any other law relating to prescription,
but subject to the provisions of ... [Article] 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.
Article 57
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
12 date on which the claim arose.
" It will be noticed that there is no longer provision for the suspension of
prescription. Art 63
was also amended and still contains a prohibition against
the institution of legal proceedings within 120 days from the date of delivery
of the claim to an appointed agent and before the requirements of art 48(f) have
been complied with. But prescription is not suspended
as it previously was in
terms of the now repealed proviso to art 55. Arts 58, 59 and 60 were also
repealed with the result that,
once a claim has become prescribed, the court may
not grant relief. This was probably seen to be justified by reason of the
extension
of the prescriptive period. In his judgment in the case of
President Insurance Co Ltd v Kruge
r at 50 5 A-B THIRION J said, and I
entirely agree, that "[the] object of the amendments to articles 55, 57 and 63
was to give the
third party
13 ample time within which to file his
claim and institute action before his claim becomes prescribed. It was because
the legislator
considered that the amendments have achieved that object that he
repealed articles 58, 59 and 60; the reasoning being that the need
for such
extraordinary relief no longer exists".
In order to decide whether
the amended provisions were intended to apply to claims which arose before the
effective date we must,
of course, first examine the language. It is interesting
to note that, when Act 56 of 1972 (which Act 84 of 1986 repealed and replaced)
was amended by Act 69 of 1978, the amending Act expressly provided that the new
prescriptive provisions would not apply to claims
that had arisen in the past. A
similar provision does not appear in the Proclamation; on the contrary, the
amended articles 55 and
57 do not
14
distinguish between claims that arose before and those that arise after
the effective date; art 55 speaks clearly and generally of
"the right to claim
compensation ... in respect of claims referred to in art 13(b)", and art 57 of
"no claim which has been lodged
under art 62".
Counsel for
President Insurance
submitted that a departure from the plain language is
justified because claimants would be deprived of their rights and would in
some
cases be prejudiced if the amended provisions were to apply to claims that arose
before the effective date. Such a result, he
argued, could not have been
intended. I do not agree. It is correct that the right to relief in terms of
arts 58, 59 and 60 would
be irretrievably lost, but I have indicated that its
loss is compensated for by the extended periods in arts 55 and 57 which was
the
very reason why the court's assistance was no longer
15 deemed
necessary. It is also correct that, in cases of inordinate delay in complying
with art 62 and the requirements of art 48(f)
or in conveying an offer of
settlement in terms of art 57(c), (the illustrations presented to us of the
prejudice that claimants
may suffer) the total prescriptive period before the
amendment might have extended beyond five years. However, to say that such cases
must have been contemplated is purely speculative. It seems much more likely
that the intention was to rid the agreement once and
for all of the provisions
that had caused great uncertainty and a considerable amount of undesirable
litigation, taking into account
the purpose of the legislation as enunciated in
Aetna Insurance Co v Minister of Justice
1960(3) SA 273 (A) at 286 E-F
and many subsequent decisions. I find it inconceivable that it could have been
contemplated that the
old system would, despite its shortcomings,
16
continue to exist side by side with the new one until all claims which
arose in the past have been disposed of. There is no logical
nor any other
discernible explanation for such a scheme.
In my view THIRION J's
conclusion is the correct one.
The result is as
follows:
1.
The
appeal in
President Insurance Company Ltd v Kruger
is dismissed with
costs including the costs of two
counsel.
2.
The appeal of
Swanepoel v City Council of Johannesburg
is upheld with costs. The court
a
quo
's order is set aside. Substituted for it is the
following:
(a) "It is declared that the
Applicant's Third Party claim against the Respondent arising from a motor
vehicle accident which occurred
on 5
17 May 1990 involving the Applicant and a motor vehicle owned by the
Respondent is governed by the Schedule to the Multilateral Motor
Vehicle
Accidents Fund Act, No. 93 of 1989, as amended by Proclamation No. 102, 1991,
and that the Applicant's claim accordingly
prescribes upon the expiry of a
period of three years from the date upon which his claim arose in terms of
Article 55 of the amended
Schedule. (b) The respondent is directed to pay the
costs of the application including the costs of two counsel."
J J F HEFER JA. BOTHA JA ) EKSTEEN JA ) Concur NICHOLAS AJA ) OLIVIER AJA
)