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[1995] ZASCA 80
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Multilateral Motor Vehicle Accidents Fund v Radebe (621/93) [1995] ZASCA 80; 1996 (2) SA 145 (SCA); (24 August 1995)
Case No 621/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
THE MULTILATERAL MOTOR VEHICLE
ACCIDENTS FUND
Appellant
and
MADIKOTSI GROTTER RADEBE
Respondent
Coram: JOUBERT, NESTADT, VIVIER, STEYN et OLIVIER, JJA
Date heard: 18 May 1995
Date delivered: 24 August 1995
JUDGMENT NESTADT. JA:
This appeal concerns the enforceability of a claim
for
2
compensation under the Motor Vehicle Accidents Act, 84 of 1986 ("the
Act").
The claim was the subject of an action in the Witwatersrand Local
Division. The respondent was the plaintiff. She sued for payment
of the sum of
R55 800.00 being the damages she and her minor child allegedly suffered through
being deprived of the support of a
certain Maloshi Isaac Maabane. He was the
customary union husband of the respondent and the father of the child. He was
killed in
a collision which occurred on the night of 14 August 1988 in a street
in Sebokeng. The respondent's cause of action was that the
deceased was a
pedestrian and that the collision was caused by the negligent driving of the
vehicle that struck him as he was crossing
the road. It was further alleged that
the identity of
3
neither the driver nor owner of the vehicle could be established. In
these circumstances, and having regard to secs 6(l)(b) and 8(1)
of the Act, the
respondent's claim would normally have been brought against the MVA Fund ("the
fund"). However, the appellant was
sued. This was because the liabilities of the
fund have, in terms of sec 3(b) of the Multilateral Motor Vehicle Accidents Fund
Act,
93 of 1989, devolved upon the appellant. This Act came into operation on 1
May 1989. As from such date it in effect superseded the
Act, save that rights
which had previously accrued continued to be governed by the Act (see sec
3(a)(i) and (ii) of Act 93 of 1989).
It is to the Act, therefore, that we must
have regard in order to determine the appellant's liability.
The appellant defended the action. The matter came
to
4
trial before Myburgh J. On the basis of certain agreed facts the parties,
presumably acting in terms of Rule 33(4) of the Uniform
Rules of Court, asked
the court to decide, as a preliminary issue, one of the defences pleaded by the
appellant. It related to the
sufficiency of the respondent's claim form. In
particular the question posed was (i) whether the respondent had complied with
sec
15(l)(a) of the Act read with para 9(l)(b)(ii) of the regulations made under
sec 17 of the Act and (ii), if not, whether she was
excused from compliance. The
latter part of the question was decided in the negative. It was held, however,
in favour of the respondent,
that she had substantially complied with the
requirements of the regulation. Accordingly the point in
limine
taken by
the appellant that she had not, was dismissed with costs. This is an appeal,
with the leave of the court a quo.
5
from such decision. In the light of the principles stated in
S A Eagle
Versekeringsmaatskappy Bpk v Harford
1992(2) SA 786(A),
Marsay v
Dilley
1992(3) SA 944(A) and
Caroluskraal Farms (Edms) Bpk v Eerste
Nasionale Bank van Suider-Afrika Bpk
1994(3) SA 407(A), it was, I consider,
an appealable order.
It is necessary to outline the appellant's liability under the Act. As I
have indicated, the obligation of the fund to compensate
third parties for loss
or damage arising out of the driving of an unidentified vehicle derives from
secs 6(l)(b) and 8(1). As in
the case of claims against appointed agents (which
arise where the vehicle in question is identified) claims against the fund are
subject to the provisions of the regulations to which I earlier referred.
Such
6
regulations were published under Government Notice 1870 in Government
Gazette 10430 of 12 September 1986. Para 8 thereof specifies
certain conditions
which require fulfilment in order to render the fund liable. They include proof
that the injury or death giving
rise to the claim arose from the negligent
driving of the unidentified vehicle and that such vehicle came into physical
contact with
the injured or deceased person (see reg 8(l)(a)(i) and (iv)). A
further requirement (in terms of reg 8(2)(a)) is that a claim for
compensation
be delivered to the fund within two years of the collision in accordance with
sec 15(1) of the Act. This section stipulates
that a claim for compensation
(under sec 8) has to be set out "in the prescribed manner on a prescribed form
which shall include
provision for a medical report....in regard to the cause
of
7
death....in connection with which the claim is instituted and for
the
prescribed supporting proof and particulars". Regulation 9
deals
with the claim form and medical report. It is provided (in
sub-para
(l)(a)) that such form and report "shall be combined in the Form
MV3" as set out in an annexure. There follows the provision on
which this appeal mainly turns, namely, reg 9(l)(b)(ii). It
reads:
"Where a person is killed outright in a motor accident the completion of
the said medical report shall not be a requirement, but in
such an event the
Form MV3 shall be accompanied by a copy of the inquest report or, in the case of
a prosecution of the person who
caused the deceased's death, a copy of the
relevant charge sheet in which it is clearly indicated that such person's death
resulted
from the accident to which the claim relates."
And, finally, the effect of reg 8(2)(b) must be noted. It is that
the
fund cannot, unlike an appointed agent, just be sued. The fund
must
first consent to be sued. If it does not, or if it rejects liability for
the
8
claim, the claimant may submit written representations to
the
Minister (of Transport Affairs) for consent to sue the fund.
The
Minister's decision "shall be final and binding on all parties
concerned". In any action against the fund the consent of the
Minister or the fund:
"shall establish the claimant's right to sue the MVA Fund, whereupon the
issues before the court shall, subject to the provisions
of this regulation,
mutatis
mutandis
be the same as they would have been if the motor vehicle
had been identified. The consent of the Minister or the consent of the MVA
Fund
shall not constitute an admission of liability by the MVA Fund in respect of the
claim concerned."
(reg 8 (3)).
I turn to the facts as agreed on and as they appear from certain
documents which form part of a bundle placed before the trial court
by consent.
In summary they are the following:
9
(i) On 26 June 1989 an inquest into the death of the
deceased was held by a Vanderbijlpark magistrate. His
main findings were:
"(c) Oorsaak of waarskynlike
oorsaak van dood: Ruptuur van hart opgedoen toe die oorledene deur 'n aankomende
voertuig raakgery is
terwyl hy oor 'n straat gehardloop het.
Bloedalkohol-konsentrasie van oorledene: 0,39 g/100 ml. (d) Of die dood
veroorsaak is deur
'n handeling of versuim wat 'n misdryf aan die kant van
iemand insluit of uitmaak: Nee."
(ii) On 9 August 1990 and within the two-year prescriptive
period referred to in reg 8(2)(a)(i), an unsigned, partly
completed MV3 claim form was sent to the fund under
cover of a letter from the respondent's attorney.
Included in the information given in the MV3 form was
the name of the deceased, the date and place of the
10
accident, the fact that it was reported to the Sebokeng police station
and what the police reference number was. In reply to a question
whether an
inquest into the deceased's death was held the answer "unknown" is given. (iii)
The medical report portion of the MV3
form was not filled in. Nor, for obvious
reasons, could a copy of any charge sheet relating to the prosecution of the
driver of the
vehicle be submitted to the appellant. And, of course, the MV3
form was not accompanied by a copy of the inquest report. All that
did accompany
the MV3 form was the child's birth certificate, a police accident report and
what is described as an "earning certificate"
11
(in respect of the deceased).
(iv) On 8 September 1990 the appellant rejected liability for the claim and
on. 4 January 1991 refused the respondent permission to
sue it. This was not
done on the basis that the respondent had failed to answer all the questions in
the MV3 form or that it was
unsigned. The allegation was rather that reg
9(l)(b)(ii) had not been complied with.
(v) The
respondent did not agree that this was so. Accordingly, and by letter dated 11
March 1991, the Minister's consent to sue the
appellant was sought. The request
by the respondent's attorney submits that, though the appellant contends that
reg 9(l)(b)(ii) was
not
12
complied with, "our client has indeed complied with....the regulation",
(vi) Permission to sue the fund was granted. This took place
by the appellant
itself, at the request of the Minister, by letter dated 2 May 1991 notifying the
respondent that "permission to
sue the MMF is hereby granted". It was followed
some weeks later, however, by a further letter from the appellant to the
respondent
in effect informing her that the appellant still maintained that reg
9(l)(b)(ii) had not been complied with.
The first issue with which I
deal is whether the respondent complied with reg 9(l)(b)(ii). This, of course,
presupposes the validity
of the regulation. During argument before us,
13
however, the soundness of doing so was queried with counsel. This was
done with
Shield Insurance Co Ltd v Booysen
1979(3) SA 953(A) in mind. In
this case (at 960 C-G) doubt was expressed whether the predecessor to sec
15(l)(a), viz, sec 25(1)
of Act 56 of 1972 sanctioned the requirements of reg
16(l)(b)(ii) (made under the old Act and corresponding broadly to reg
9(l)(b)(ii)).
Nevertheless, counsel were content to accept that reg 9(l)(b)(ii)
was not
ultra vires
. The appeal is therefore dealt with on this basis. In
does not, however, follow that strict or exact compliance with the regulation
was required. On behalf of the appellant, Mr
Coetsee
conceded that
substantial compliance sufficed. Despite the wording of secs 6(l)(a) and 8 of
the Act (to the effect that liability
of the fund is subject to the regulations
and the conditions thereby prescribed) I am satisfied
14
that the concession was correctly made. As I have said, Myburgh
J
decided that there had been substantial compliance. I proceed
to
consider the correctness of this finding.
It will be recalled that reg 9(l)(b)(ii) affords a claimant
who sues in respect of a person who has been killed "outright", a choice
of submitting, in substitution of a medical report, one of
two documents with
the MV3 form. They are (i) a copy of the inquest report and (ii) where there has
been a prosecution of the driver
who caused the deceased's death, a copy of the
relevant charge sheet. On a proper interpretation of the regulation, the
document
must, in both cases, clearly indicate that the death "resulted from the
accident to which the claim relates". The respondent's allegation
is that the
deceased was killed outright. It follows that the appellant could not
15
complain about the non-completion of the medical report. Nor did it: And,
as already indicated, there was no charge sheet relating
to the driver's
prosecution. (Indeed it is difficult to envisage how in a claim against the
fund, where ex
hypothesi
an unidentified vehicle is involved, such a
document could ever be utilised.) In these circumstances, it was required of the
respondent
that a copy of the inquest report accompany the MV3 form. The
appellant's complaint of non-compliance with reg 9(l)(b)(ii) was founded
on the
respondent's failure to do this.
In
Khumalo v Guardian National Insurance Co Ltd and Another
1990(3) SA 69(T) at 73 D, Streicher J held that the inquest report referred to
in the previous regulation means, not the inquest
record, but the magistrate's
findings. The same applies to reg
16
9(l)(b)(ii). Plainly, however, not even these were annexed by the
respondent to her MV3 form. She did not therefore comply with reg
9(l)(b)(ii).
Can it be said that there was substantial compliance? I am prepared to accept
that the regulation does not necessarily
require that a copy of the inquest
report per se be furnished. 1 shall assume that if, for example, the MV3 form
itself particularised
the substance of the inquest findings (in which it is
clearly indicated that the deceased's death resulted from the collision), this
would constitute sufficient compliance with reg 9(l)(b)(ii). But even in this
respect the MV3 form was wanting. Indeed, in the words
of the judge a
quo
"the information furnished in the MV3 form did not allow the Fund to
ascertain whether it could be held liable and the potential ambit
of its
liability nor could the Fund decide to resist the claim or to
17
compromise it before costs of litigation were incurred." The main
argument on behalf of the respondent rested rather on the following
propositions: (i) the information furnished in the MV3 form (ie the name of the
deceased, the date and place of his death and the
police reference number) would
have enabled the appellant itself to have easily obtained a copy of the inquest
report from the Vanderbijlpark
magistrate's court; and (ii) there was a duty on
the appellant to have done this.
There can, 1 think, be no quarrel with the first proposition. I say this
despite certain ineffectual attempts by the respondent's
attorney to obtain a
copy of the inquest report. The report was at all times available to the public.
And it was the appellant which
eventually obtained it. But the question is:
does
18
the fact that the respondent in the MV3 form furnished the
appellant
with sufficient information to enable it to obtain the inquest
report
constitute compliance with reg 9(l)(b)(ii)? In other words was
there,
as Myburgh J found, a duty on the appellant to have procured it?
The respondent relied on the principle that the claim form is
designed
to invite, guide and facilitate investigation of the claim by (what
used
1 to be called) the insurer and thus enable it to determine,
before
litigation commences, its attitude to the claim
(AA Mutual
Insurance
Association Ltd v Gcanga
1980(1) SA 858(A) at 865 D and
H).
Galgut AJA in
Constantia Insurance Co Ltd v Nohamba
1986(3)
SA
27(A) at 39 G-H stated the consequences of this to be the
following:
"It follows, in my view, that if an insurance company is given sufficient
information to enable it to make the necessary inquiries
in order to decide
whether 'to resist the claim or to settle or to compromise it before any costs
of litigation are
19
incurred', it should not thereafter be allowed to rely on its failure to
make the inquiries." (My emphasis.)
In this case there
was an inaccuracy in the claim form. It had
incorrectly been stated
that the plaintiff was not entitled to workmens'
compensation. In fact he was and had received such compensation.
In all other respects, however, the claim form was accurate and
complete. It contained information as to the nature of the
plaintiffs
employment and the name and address of his employer. The Court
held that there had been substantial compliance with the
provisions
of sec 25(1) of the old Act. The reasoning appears at page 40C
and
is in the following terms:
"There can be no doubt that had the defendant made the most elementary
investigations, as it would have had to do to ascertain plaintiffs
injuries, his
loss of earnings and future earnings and who had paid the doctors, chemists and
hospitals, it must have learned that
he was a 'workman' who had
received
20
compensation from the WCC. If in fact it failed to make any
investigation it cannot complain. In short,
the form gave
defendant all the information it required
in order to decide
whether 'to resist the claim or to settle or to compromise it
before any costs of litigation were incurred.'" (My
emphasis.)
Similarly, so it was submitted on behalf of
the respondent, the appellant had been given all the necessary information to
enable it
to obtain the inquest report; this being so, the obligation imposed by
reg 9(l)(b)(ii) to furnish the report had been substantially
complied
with.
I am unable to agree with the argument. What the Court said in
Nohamba
must not be misunderstood. Nor should it be taken out of context.
The statement that the insurer cannot rely on its failure to make
enquiries was
premised on it having been given sufficient information; hence the use by Galgut
AJA of "if in the
21
first passage cited and the reference to the fact that "the form gave
defendant all the information it required" etc in the second.
Moreover, an
opportunity to investigate is not to be converted into an obligation to do so.
This could not have been the intention
of the Cramers of the Act or the
regulations. The matter was, I consider, put in the correct perspective in
Guardian National Insurance Co Ltd v Van der Westhuizen
1990(2) SA
204(C). Here the claim form particularised the hospital at which the plaintiff
had been treated, the doctor who attended
her, the period of her hospitalisation
and the hospital reference number. But the claim form did not contain the
statutory medical
report. There was merely an informal one from a doctor who
certified that the plaintiff suffered serious and multiple injuries in
the
collision and that as a result she was crippled and
22
permanently unfit to work. In holding that there had not been i
sufficient compliance with sec 25(1) of the old Act, Tebbutt J
(Friedman and Conradie JJ concurring) stated (at 212 E - 213 A):
"While it is true that one of the purposes of the claim form is to
'invite, guide and facilitate' investigation by the insurer, it
does not, in my
view, mean that the insurer is obliged or required to do so. The
dicta
to
that effect in
Gcanga (supra
at
865D and 865H) and
Nohamba (supra
at 39B and 39G)
mean no more than that the information in the form must be such that if
the insurer should wish to investigate any aspect, including
the injuries, it
should have available reasonably correct information from which to launch its
enquiries or
conduct its investigations These
dicta
do not mean, in my
view, that a claimant can merely set out sources of
information
and then say, in effect, to the insurer: 'Now you go
ahead and
find out what my injuries are, what is wrong with me
at
present and why I am claiming the amounts I am.' I also
do
not think that by his remarks in
Nohamba (supra
), that
an
insurer should not be 'allowed to rely on its failure to
make
inquiries' or that if the insurer 'had made the most
elementary
investigations, as it would have had to do to
ascertain
plaintiffs injuries...', Galgut AJA intended to lay down
that an
insurer must make enquiries and do an investigation Galgut
23
AJA certainly did not intend to indicate that, because in
particular circumstances an insurer may reasonably be expected to make
further enquiries, the claimant is relieved of the obligation
of substantially
complying with the regulations.
Indeed, he stated that the insurer must be given the
information it requires to decide whether to resist the claim or to settle
or to compromise it before any costs of litigation are
incurred."
From the point of view of both principle and policy
these
views are to be supported. It is true
that the object of the Act is to
give the widest possible protection to third parties. On the
other
hand, the benefit which the claim form is designed to give the
fund
must be borne in mind and given effect to. The information contained in
the claim form allows for an assessment of its liability including
the possible
early investigation of the case. In addition,
it also promotes the saving of the costs of litigation. In particular,
the purpose of reg 9(l)(b)(ii) is to facilitate a decision
whether, in
the
24
case of a dependent's claim, it was the fatal accident which caused the
deceased's death and whether the driver of the vehicle in
question was
negligent. Sec 16(2) of the Inquests Act 58 of 1959 enjoins the judicial officer
holding the inquest to record a finding
inter
alia as to the cause or
likely cause of death and whether it was brought about by any culpable conduct
on the part of any person.
The fund would be able to obtain similar though less
cogent information from the charge sheet. These various advantages are important
and should not be whittled away. The resources, both in respect of money and
manpower, of agents and particularly of the fund are
obviously not unlimited.
They are not to be expected to investigate claims which are inadequately
advanced. There is no warrant for
casting on them the additional burden of doing
what the regulations require should be
25
done by the claimant. There can be no (substantial) compliance where the
claimant has merely indicated to the fund how it, through
its own efforts, can
obtain the necessary information or documents. To sum up so far, I am of the
opinion that the fact that the
information supplied by the respondent in her MV3
form would have enabled the appellant to obtain a copy of the inquest report
does
not avail the respondent. There was no duty on the appellant to do this.
Reg 9(l)(b)(ii) imposed the obligation on the respondent.
She failed to comply
with it. This was therefore not a case of substantial compliance but one of
non-compliance.
An alternative argument was advanced on behalf of the respondent. As I
understood it, it was that the respondent had not wilfully
withheld the inquest
report and that on the authority of
26
Union and South-West Africa Insurance Co Ltd v Fantiso
1981(3) SA
293(A), the respondent should not be non-suited. I doubt whether the point is
covered by the pre-trial agreement between
the parties concerning the issues to
be decided. In any event, it is without substance.
Fantiso's
case dealt
with sec 23(c)(ii) of the old Act which provided that an insurer was not obliged
to pay compensation where the claimant
"refuses or fails" to furnish certain
medical reports. It was held that forfeiture of the plaintiffs claim would only
be allowed
if the documents had been wilfully withheld. The Court was not
concerned with any question of substantial compliance. The wording
of reg
9(l)(b)(ii) is quite different. The fact that the failure to furnish the inquest
report might not have been deliberate in
the sense used in
Fantiso's
case
is irrelevant.
27
This brings me to a consideration of the second issue, namely, whether
the respondent was excused from complying with reg 9(l)(b)(ii).
Clearly, if this
be so, the appeal must, despite the respondent's non-compliance with the
regulation, succeed. The respondent's contention
that she did not have to comply
with the regulation was based on reg 8(2)(b). It will be recalled that it
provides for the Minister's
consent to sue the fund. The submission was that the
Minister, having granted such consent, the respondent's right to sue the fund
was conclusively established and the appellant was therefore precluded from
relying on the respondent's noncompliance with the regulation.
As I have said,
the trial court rejected the argument. I shall assume, in favour of the
respondent, that in seeking to overturn the
learned judge's decision, it was
not
28
necessary for her to cross-appeal.
In my opinion, Myburgh J,
on the authority of
Verster v Motor Vehicle Assurance Fund
19780) SA
691(A), correctly decided the point against the respondent. In that case it was
held that the Minister's consent given
under reg 6(l)(b)(ii) of the 1972 Act
(which is in substantially similar terms to our reg 8(2)(b)) did not exclude the
fund from
contending that it was not liable because the unidentified vehicle had
not come into physical contact with the person injured. According
to Miller JA
(at 697 G-H) there was "nothing in the regulations to suggest that anything more
than the right to sue is established
by the certificate or that finality is lent
to anything more than the Minister's decision to allow the claimant to sue the
Fund".
The reasoning was that there had been no factual
29
decision by the Minister on the issue of "physical contact"; the Minister
was not constituted a court of law; he is not obliged to
allow the parties to
lead evidence or address him; it was hardly conceivable that it was intended
that he could make final and unassailable
findings of fact in regard to
questions so vital to the claim, without proper observance of the
audi
alteram partem
rule (see at 697H - 698C).
Mr Hotz, for the respondent, sought to distinguish
Verster
on the
basis that the court was there concerned with what counsel described as an issue
of causation arising from a peremptory provision
in the regulations, whereas in
our case the appellant's complaint was founded on a procedural defect where only
substantial compliance
was required I do not think this matters. What
Miller
30
JA said applies with equal force to a case where there has been
noncompliance with reg 9(l)(b)(ii). To begin with, it must be borne
in mind that
the appellant, having rejected the respondent's claim, was bound, to enable her
to sue, to seek and obtain the Minister's
consent; it was therefore part of her
cause of action. Moreover, the Minister was told that the issue whether the
regulation had
been complied with was in dispute. There is nothing to suggest
that his consent was founded on a decision that the respondent's contention
in
this regard was correct or that the fund made any representations to him that it
was not. His consent must therefore be taken
to have been given on the basis
that the issue of compliance would, if raised, be resolved at the trial. And, of
course, effect must
be given to the end part of reg 8(3), namely, that the
consent of the Minister "shall not constitute an
31
admission of liability in respect of the claim concerned".
This
was a factor that Miller JA also took into account (see at 698
G).
As a last resort, counsel argued that the fund had waived its right to
insist on compliance with reg 9(l)(b)(ii).
Multilateral Motor Vehicle
Accidents Fund v Meyerowitz
1995(1) SA 23(C) was relied on. In this case a
claim for compensation against the appellant was initially rejected by it on the
ground
that the claim had become prescribed. The plaintiff acknowledged this but
requested the appellant to waive prescription. This being
so, it is not
surprising that it was held that the appellant's subsequent grant of consent to
be sued amounted to a waiver of prescription.
The facts in our case are quite
different. The respondent's letter to the Minister seeking permission to sue
(see para (v) above)
acknowledged that
32
there was a dispute between the parties as to whether reg
9(l)(b)(ii)
had been complied with. So there was no question of an
unambiguous, implied request that an admitted non-compliance by
the respondent be waived by the appellant. Its consent to be
sued
must be judged in this light. There is in the circumstances no
warrant for finding that such consent incorporated a waiver of
its
right to rely on the respondent's non-compliance with reg 9(l)(b)(ii).
On the contrary, as appears from its subsequent letter to the
respondent (see para (vi) above), there was no waiver. I should
add
that the issue of waiver was not referred to in the statement of
agreed
facts and was not raised in the court a
quo
.
In the result therefore the respondent having failed to comply with reg
9(l)(b)(ii) and not being excused from compliance,
33
Myburgh J should have upheld the point in
limine
and decided both
the agreed issues in the appellant's favour. The result of doing so would have
been to dismiss the respondent's
claim. The following order is made:
(1) The appeal is upheld with costs.
(2) The order of the court a
quo
is set aside and the
following
substituted:
"(a) The defendant's plea that the plaintiff failed to comply
with reg 9(l)(b)(ii) is upheld. (b) The plaintiffs action is dismissed
with costs."
H H Nestadt Judge of Appeal
Joubert, JA )
Vivier, JA ) Concur
Steyn, JA )
Olivier, JA )