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[2014] ZAWCHC 64
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Roux SC N.O v Road Accident Fund and Another (17068/2009) [2014] ZAWCHC 64 (2 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 17068/2009
DATE:
02 MAY 2014
Reportable
In
the matter between:
ADVOCATE
JAN-HENDRIK ROUX SC N.O
(In
his representative capacity as curator
ad litem
Of
QUINTON HUMAN born on 14 February
1966)
.................................
Plaintiff
And
THE
ROAD ACCIDENT
FUND
...................................................
First
Defendant
A
R VAN DER LITH & COMPANY ATTORNEYS
NOTARIES
& CONVEYANCERS t/a
VAN
DER LITH
ATTORNEY
..................................................
Second
Defendant
JUDGMENT
DELIVERED ON 2 MAY 2014
BOQWANA,
J
Introduction
[1]
This
matter concerns a Special Plea of Prescription raised by the first
defendant in a claim for damages brought by the plaintiff
against the
defendants. The issues to be determined are whether the plaintiff’s
claim prescribed by virtue of his alleged
failure to institute legal
proceedings within 5 years as from the date the claim arose (after
having lodged a claim within 2 years
as from date of accident) as
contemplated by the provisions of the Multilateral Motor Vehicle
Funds Act (‘the MMF Act’)
[1]
and
Regulations promulgated under that Act, and/or whether the provisions
of the Prescription Act
[2]
do apply to the matter at hand. The parties agreed that the issue be
decided on an agreed statement of facts as envisaged in rule
33 of
the Uniform Rules.
Agreed
facts
[2]
The
agreed facts are as follows. On 16 July 1994, Quinton Human (‘the
patient’) was injured in a motor vehicle accident
on a public
road. On 30 November 1995, Advocate Warren Young (‘Adv. Young’)
was appointed by the Court in case number
9935/1995, as
curator
ad litem
(with duties and obligations as set out in the Court Order) and the
patient’s father, Mr John Human, was appointed as his
curator
bonis
.
[3]
Adv.
Young resigned from the Cape Bar in November 1998. On 10 July 1996
the second defendant lodged an MMF1 Claim Form with the
first
defendant. On 22 November 1999, Adv Young was substituted by a Court
Order in the Chamber Book Application 745/1999 as
curator
ad litem
by Advoacte Jan-Hendrik Roux, the present
curator
ad litem.
[4]
After
the death of Mr John Human, Mr Deon Oliver of Village Trustees had
been substituted as
curator
bonis
of
the patient by the Master of the High court on 29 February 2008.
[5]
On
12 and 14 August 2009, the plaintiff served his summons on the first
and second defendants respectively. The patient has been
under
curatorship (
ad
litem en bonis
)
since November 1995 to the present.
[6]
The
aforesaid collision and plaintiff’s claim against the first
defendant in terms thereof are regulated by the MMF Act. The
patient
has, as diagnosed by medical experts who evaluated him in support of
the curator application, the mental state of: inappropriate
behaviour, memory deficit, and concentration deficit.
[7]
The
parties agreed that, should the first defendant’s special plea
be dismissed, the action pertaining to the first defendant’s
liability and the resultant quantum determination shall continue
against first defendant only and that the plaintiff’s claim
against the second defendant stands to be dismissed.
First
defendant’s special plea
[8]
The
first defendant avers that the plaintiff’s claim against the
first defendant is governed by the provisions of the MMF
Act and the
Regulations promulgated thereunder and by the Road Accident Fund
Act
[3]
[9]
It
contends that in terms of the aforesaid Acts and Regulations a claim
of compensation arising from the driving of a motor vehicle,
where
the identity of the owner or driver is not established, should be
lodged with the Multi Vehicle Accident Fund (‘the
MMF’)
within a period of 2 (two) years from the date of the accident and
the same must be enforced by way of legal proceedings
within 5 (five)
years as from date of accident. The plaintiff alleges that the
collision occurred on 16 July 1994, and the plaintiff
had to lodge
his claim in accordance with the provisions of the MMF Act by 15 July
1996, and serve summons on the first defendant
by no later than 15
July 1999.
[10]
The
first defendant further alleges that the second defendant was
requested by Adv Young in his capacity as
curator
ad litem
to prepare a claim on Mr Human’s behalf against the MMF. The
second defendant lodged the statutory and requisite MMF1 Form
on
behalf of the patient together with relevant correspondence on 11
July 1996.
[11]
Between
the periods of 1996 and 2000 various correspondences ensued between
the first and second defendants regarding requests for
documents,
settlement offers and clarity on further steps, amongst others.
[12]
On
2 August 2000, the first defendant advised the second defendant that
it had come to their attention that the matter prescribed
on 15 July
1999 and their offer of 31 May 1999 was no longer valid as the 30 day
period had expired without it being accepted.
Upon receiving a letter
from the second defendant on 13 September 2000 which enclosed an
opinion and requesting that ‘further
negotiations be entered to
settle the matter’, the first defendant informed the second
defendant that it was not authorised
to waive prescription in this
matter and that the matter had prescribed on 15 July 1999.
Plaintiff’s
submissions
[13]
The
plaintiff argues that prescription of a claim in terms of the MMF Act
by a person under curatorship where the claim arises from
a motor
vehicle accident involving an unidentified motor vehicle is governed
by Chapter III of the Prescription Act (subject to
the provisions of
article 57 of the Agreement in terms of the MMF Act, which extends
the prescription from 3 years to 5 years).
[14]
According
to the plaintiff, completion of prescription is delayed in terms of
section 13(1) (a) of the Prescription Act where the
claimant is under
curatorship. The plaintiff argues that the patient was placed under
curatorship on 30 November 1995 and has been
under such curatorship
ever since that date to the present. His claim was lodged with the
first defendant within the 2 year period
provided for in the MMF Act
and Regulations. The patient had been under curatorship before the
expiry of the 5 year period and
to this day he remains under
curatorship. As a result completion of prescription of his claim
remains delayed and his claim did
not become prescribed by the date
upon which summons was served on the first defendant. As a result,
the plaintiff contends that
the first defendant’s special plea
is without merit and stands to be dismissed with costs.
Second
defendant’s submissions
[15]
The
second defendant avers that it makes common cause with the
plaintiff’s argument on the Special Plea raised by the first
defendant. Pertaining to the second defendant’s further
and alternative special plea of prescriptions
vis
a vis
the plaintiff, such would only become relevant if the Court upholds
the first defendant’s special plea of prescription. By
agreement between the parties such alternative special plea is held
over pending the finalisation of the Court’s determination
on
the first defendant’s special plea.
[16]
In
his replying argument at the hearing of this matter, counsel for the
first defendant, Mr Eia, criticised the fact that, in paragraphs
1.2
and 1.3 of the second defendant’s special plea, the second
defendant averred that the claim against the first defendant
had
prescribed. Mr Oosthuizen SC, counsel for the second defendant, filed
a supplementary note on 27 March 2014 pointing to the
agreement
between the parties I have referred to in paragraph 15 above and
contending that the correctness of the allegations in
the special
plea are not an issue to be decided by the Court at this stage and
thus are wholly irrelevant to the issues to be decided
at this stage.
It is further argued by Mr Oosthuizen that in any event, the special
pleas raised by the second defendant in paragraphs
1 and 2 of its
special pleas are based on an incorrect interpretation of the law and
should it become relevant and the plaintiff
persist, the second
defendant would file an amendment providing deletion of the said
paragraphs of the special plea. Any determination
made by the Court,
it is submitted by Mr Oosthuizen, would undoubtedly be binding on
plaintiff and defendants, both now and in
the future due to the
principles of
res
judicata
and the issue of estoppel. Submissions made by Mr Oosthuizen in
his supplementary note were not challenged by counsel for
both the
plaintiff and first defendant.
The
legal framework
[17]
There
are in essence two sets of legislation that have been raised by the
parties in this matter, being the MMF Act and the Regulations
promulgated under that Act on the one hand and the Prescription Act
on the other. What is to be considered is whether the provisions
of
the two Acts are inconsistent with each other and the extent of that
inconsistency, and if there is inconsistency which of the
legislation
would be applicable in regulating this matter.
[18]
The
MMF legislation is constituted in three separate parts being: the Act
itself, the Agreement establishing the MMF as set out
in the schedule
to the MMF Act (‘the Agreement’), as amended, and
Regulations promulgated in terms of Section 6 of
the MMF Act. The MMF
Act itself contains no provisions directly relevant to prescription
at all. Section 2(1) of the Act provides
that:
‘
The
Agreement...shall, subject to the provisions of this Act, have the
force of law and apply in the Republic of South Africa, as
if it were
an Act of Parliament of the Republic of South Africa. ’
Section
6 (1) empowers the Minister of Transport (‘The Minister’)
to make Regulations to give effect to any provisions
of the
Agreement. The Regulations made by the Minister are referred to in
the definitions section 1 of the MMF Act as follows:
‘
In
this Act, unless the context otherwise indicates –
....
“
this
Act” includes the regulations made under s 6.’
[19]
In
so far as the Agreement is concerned Chapter XVIII which deals with
the prescription of claims contains three provisions relevant
to this
case which are Articles 55, 56 and 57. Articles 55 and 56 deal with
motor vehicle accidents caused by identified motor
vehicles. Article
55 provides as follows:
‘
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 3 years from the date upon which the claim arose.’
[20]
Article
56 of the Agreement provides that:
‘
Article
56
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’
[21]
The
abovementioned Articles therefore do not apply in the present matter.
Article 57 however is not limited to identified motor
vehicles. It
also applies to unidentified motor vehicles. Article 57 reads as
follows:
‘
Notwithstanding
the provisions of Article 55, no claim which has been lodged under
Article 62 shall prescribe before the expiry
of a period of 5 years
from the date on which the claim arose.’
[22]
The
first defendant’s Special Plea is primarily based on Regulation
3 of the Regulations promulgated in terms of section 6
of the MMF Act
and the subsequent
Road Accident Fund Act, 56 of 1996
which deals
specifically with the liability of the MMF in respect of the claims
arising from the driving of a motor vehicle in
cases where the
identity of neither the owner nor the driver could be identified.
[23]
Regulation
3(1)
c(i) and (ii) of the aforesaid Regulations provide as follows:
‘
3.(1)
The liability of the MMF in terms of the Agreement in respect of
claims for bodily injury or death arising from the driving
of a motor
vehicle of which the identity of neither the owner nor the driver can
be established (hereinafter referred to as the
unidentified motor
vehicle) shall be subject to the following conditions:
(a)
The
MMF shall not incur any liability unless –
...............’
[24]
Regulation
3(2)
provides as follows:
‘
(2)
The liability of the MMF in respect of claims which arise in terms of
this regulation shall be subject to the following
further conditions:
(a) (i)
A claim for compensation for loss or damage suffered by the claimant
shall be
delivered
to the MMF within two years from the date upon which the claim arose
mutatis mutandis in accordance with the provisions of Article 62 of
the Agreement.
(ii)
The provisions of subparagraph (i) shall also apply to all third
parties and claimants, irrespective of whether they
are subject to
any legal disability.
(b)
No
such claim shall be enforceable by legal proceedings commenced by a
summons served on the MMF before the expiration of a period
of 90
days as from the date on which the claim was sent or delivered by
hand, as the case may be, to the MMF as provided for in
paragraph (a)
(i):
Provided that if the MMF
repudiates in writing liability for the claim before the expiration
of the said period, the claimant may
at any time after such
repudiation serve summons on the MMF.
(c)
(i)
The MMF shall not incur any liability unless the summons
arising from the provisions of paragraph (b) above has been
properly
served on the MMF within five years from the date on which the claim
arose
as provided for in paragraph (a) (i): Provided that the court
shall not hear the action before the third party has lodged
with the
court a certificate
probabilis
causa litigandi
prepared by an independent advocate or attorney of not less than 10
years’ standing who has considered all the evidence concerning
causation and liabilityto each of the litigants.
(ii) The provisions
of subparagraph (i) shall also be applicable to all third parties and
claimants, irrespective of whether they
are subject to any legal
disability.’
[25]
Regulation
3(2)
is the relevant provision for the purposes of the stated case.
The first defendant accepts that a valid claim as required by
regulation 3(2)
(a) (i) was lodged by the plaintiff on 11 July 1996.
The requirements of that provision were accordingly satisfied. The
issue raised
by the first defendant is that summons was not served
within five years from the date on which the claim arose as required
by
regulation 3(2)
(c) (i), which would have been on or before 15
July 1999. Instead it was served 15 years later on 12 August
2009.
[26]
Sections
13(1)(a) and 16 of the Prescription Act which the plaintiff rely on
provide as follows:
‘
13.
Completion of prescription delayed in certain circumstances. –
(1)
If
–
(a)
The
creditor is a minor or is insane or
is
a person under curatorship
or is prevented by superior force including any law or any order of
court from interrupting the running of prescription as contemplated
in section 15(1); or
(b)
The
debtor is outside the Republic; or...
(c)
.................................................
...........................................................
(i) the relevant
period of prescription would, but for the provisions of this
subsection,
be completed before or on, or within one year after ,
the day on which the relevant impediment referred to in paragraph
(a), (b),
(c), (d), (e), (f), (g) or (h) has ceased to exist,
the
period of prescription
shall
not be completed before a year has elapsed after the day referred to
in paragraph (i)
’
(‘Own
emphasis)
...’
[27]
Section
16 of the Prescription Act provides as follows:
‘
16.
Application of this Chapter. – (1) Subject to the provisions of
subsection (2) (b), the provisions of this chapter shall,
save in so
far as they are inconsistent with the provisions of any Act of
Parliament which prescribes a specified period within
which a claim
is to be made or an action is to be instituted in respect of a debt
or imposes conditions on the institution of an
action for the
recovery of debt, apply to any debt arising after the commencement of
this Act.
[28]
It
is submitted by Mr Duminy SC on behalf of the plaintiff that the
regulations that the first defendant relies on are in conflict
with
section 13(1)(a) of the Prescription Act (in respect of the period
prescribed for prescription of the claim). According to
the plaintiff
where there is conflict between the Prescription Act and another
statute, the Prescription Act must yield to the
third party
legislation as prescribed in section 16 of the Prescription Act.
Regulations 3(2) c(i) and (ii) of the MMF Act, that
the first
defendant rely on, are, however, not an Act of Parliament as
envisaged in section 16 of the Prescription Act and accordingly
do
not take precedence over the provisions of the Prescription Act.
Section 13 (1) (a) therefore applies in these circumstances,
delaying
the completion of prescription of the patient’s claim.
Analysis
[29]
To
determine whether or not the Prescription Act or the regulations
regulate the special plea of prescription raised by the first
defendant, section 16 of the Prescription Act should be the starting
point. In
Moloi
& Others v Road Accident Fund
[4]
,
the Court held that:
‘
[13]
It is convenient to deal with this latter point first. Although
section
16
of
the
Prescription
Act is
not
drafted as clearly as it might be it is reasonably plain that
what
is intended is that the provisions of Chapter III will apply to all
debts save where they are ousted by the provisions of an
Act of
Parliament which is inconsistent and then only to the extent of the
inconsistency
.
The inconsistent provisions which have to be included in an Act of
Parliament and which will oust some or all of the provisions
of
Chapter III are provisions which (a)
prescribe
a specified period within which a claim is to be made
;
(b)
prescribe
a specified period within which an action is to be instituted in
respect of a debt
or
(c)
impose
conditions on the institution of an action for the recovery of a
debt
.
Regulation 3(2) (a) is a provision falling under (c) above because it
purports to impose conditions on the institution of an action.
It
follows from the plain terms of section 16 that unless such provision
has the status of an Act of Parliament it is invalid.
[14]
I do not agree that the provisions of the
Prescription
Actare
ousted
because of the fact that in
section
1
of
Act 93 of 1989 the words “this Act” are defined so as to
include the regulations made under section 6. It is clear
from the
introductory words to section 1 that the statutory definition of
“this Act” applies in the interpretation
of Act 93 of
1989 itself.
There
is no substantive elevation of the regulations to the status of an
Act of Parliament.
It is instructive in this regard to compare how the regulations are
dealt with in section 1 with what is said in section 2(1) about
the
Agreement,
viz
:
“The Agreement . . . shall, subject to the provisions of this
Act, have the force of law and apply in the Republic of South
Africa,
as
if it were an Act of Parliament of the Republic of South Africa
.”
(The emphasis is mine.)
[15]
In other words it is clear that the Agreement has been expressly
given the status of an Act of Parliament and it was accordingly
accepted by this Court in
Road
Accident Fund v Smith N O
[1998]
ZASCA 86
;
1999
(1) SA 92
(SCA)
that provisions in the Agreement dealing with prescription oust
inconsistent provisions of the
Prescription
Act in
terms
of
section16
thereof.
[16]
If Parliament had intended the regulations made under
section
6
of
Act 93 of 1989 also to have that status so as to oust inconsistent
provisions of the
Prescription
Act, I
would
have expected a similar provision to that contained in
section
2
to
have been included as regards theregulations.
[17] In the absence
of such a provision it cannot be held in my view that the regulations
are to be regarded as included in Act
93 of 1989 for any purpose
other than interpreting the expression “this Act” therein
and they do not have the status
of an Act of Parliament for any other
purpose. The result is that they cannot oust the provisions of
Chapter III of the
Prescription
Act in
the
case of a minor’s claim in terms of the Agreement where such
claim arises out of the driving of a motor vehicle of which
the
identity of neither the owner nor the driver can be ascertained. It
follows that the plaintiffs’ contention as set out
in paragraph
8 of the stated case should in my view have been upheld.
[30]
Section
16 of the Prescription Act plainly provides that provisions of
Chapter III dealing with prescription of debts and which
include
section 13 shall apply to any debt arising after the commencement of
that Act, save as in so far as they are inconsistent
with the
provisions of any Act of Parliament prescribing a specific
prescription period, in which case such Act of Parliament will
override such Prescription Act provision.
[31]
The
Moloi
decision
found that there is no substantive elevation of the Regulations to
the status of an Act of Parliament. Although the
Moloi
matter
dealt with
Regulation
3(2) (a) (i) and (ii), the decision dealt with a principle that a
Regulation (it being not an act of Parliament) could
not override the
provisions of the Prescription Act. The Court held as follows:
‘
The
result is that they cannot oust the provisions of Chapter III of the
Prescription Act in the case of a minor’s claim in
terms of the
Agreement where such claim arises out of the driving of a motor
vehicle of which the identity of neither the owner
nor the driver can
be ascertained. It follows that the Plaintiff’s contention as
set out in paragraph 8 of the stated case
should, in my view, have
been upheld.
[5]
[32]
Paragraph
8 of the stated case in that matter was to the effect that sections
13 and 16 of the Prescription Act were applicable
in that case and
their effect was that prescription did not run against minors.
[6]
[33]
I
am therefore not persuaded by the argument made by Mr Eia that
Moloi
is distinguishable simply because it dealt with Regulation 3(2)(a)(i)
and (ii) and not with Regulations 3(2)(c)(i) and (ii). That
decision
clearly found on principle. As can be seen from the
Moloi
decision above section 2(1) of the MMF Act provides
that:
‘
The
Agreement . . . shall, subject to the provisions of this Act, have
the force of law and apply in the Republic of South Africa,
as
if it were an Act of Parliament of the Republic of South Africa.’
(Own
emphasis) but no such is mentioned when pertaining to the
Regulations.
[34]
The
only provision in the ambit of the MMF Act that can be said to be
inconsistent with the Prescription Act is Article 57 in the
Agreement.
Undoubtedly
if the Legislature intended the Regulations to have the same status
as the Act of Parliament it would have said so as
Farlam AJA (as he
then was) observed in the
Moloi
judgment.
Article
57
(in
the Agreement) specifically states that the term of prescription is
five years (and not three years as provided for in the Prescription
Act).
[35]
There
are however no provisions in the MMF Act or Agreement, dealing with
the certain circumstances in which the completion of prescription
is
delayed; such are dealt with in section 13 of the Prescription Act.
Section 13 of the Prescription Act would therefore regulate
the delay
in completion of prescription as the MMF Act is silent on this.
The calculation of five years in
Article
57
must therefore be read subject to the provisions of Section 13(1) (a)
of the Prescription Act.
[36]
Section
13(1)(a) delays prescription for as long as the person is under
curatorship. The claim will become prescribed one year after
the
impediment of curatorship has been lifted. That section neither
defines curatorship nor provides any examples of what the term
could
be referring to. The first defendant has raised an alternative
argument relying on the decision of
ABP
4 X4 Motor Dealers (Pty) (Ltd) v IGI Insurance Co Limited
[7]
.
It is argued on behalf of the first defendant that ‘a person
under curatorship’ referred to in section 13 of the
Prescription Act does not include a person such as the patient in the
present matter because the appointment of the
curator
ad litem
enabled
the curator to institute legal proceedings on behalf of the patient.
Mr Eia argued that once a
curator
ad litem
was
appointed the impediment under section 13 falls away (as the patient
was not disabled from suing).
[37]
In
the
ABP
4x4 Motor Dealers
[8]
decision
the Court held that:
‘
[29]
The legislature has not defined or explained in the Act what the
words ‘a person under curatorship’ are intended
to
comprehend. Nor are any examples given in the Act from which it might
be possible to deduce it. One is thrown back upon the
ordinary
meaning of the words used with due regard to the context, the
apparent purpose of the provision in which they are found
and, of
course, to their setting in, and the object of, the statute as a
whole. In the process one has to bear in mind that the
concept of
curatorship in the present day South African law is no longer limited
to its well known manifestations in the common
law but extends to a
number of statutorily created curatorships, each with its own raison
d’être. The spectrum is wide
indeed. Such curatorships
sometimes apply to both natural persons and juristic persons and
sometimes to only one or other of those
classes of persons. Their
reach and effect is sometimes all-embracing and disabling and
sometimes narrowly confined with very little
accompanying
disablement. Their raison d’être is sometimes the same as
that in another statute; sometimes it is unique
to the statute in
which it is found. Herein lies the rub.’
[30]
The Legislature must be taken to have been aware of its creations
when it employed the expression ‘a person under curatorship’
in the Act. The question then is which (if any) of them is to be
included and which (if any) to be excluded and, more specifically,
of
course, whether the particular curatorship which exists in this case
is to be included. If all are to be included some absurd
results will
ensue as I shall attempt to demonstrate in due course. If some are to
be excluded the question of what criteria determine
exclusion arises’
[38]
ABP
4x4 Motor Dealers
decision
does not in my view support the first defendant’s proposition
that when a
curator
ad litem
has been appointed the impediment in section 13 falls away as the
curator will be able to institute legal action. The Court in
the
ABP
4x4
case
was faced with a different legal question which was whether reference
to ‘a person under curatorship’ in section
13(1)(a) of
the Prescription Act was to a natural person and not a juristic
conception to which legal personality had been artificially
attributed by law, and whether ‘the relevant impediment
referred to in paragraph (a)’
showed
that
curatorships which did not disable the subject of the curatorships or
curators from commencing legal proceedings to enforce
claims was not
the kind of curatorship envisaged in section 13(1)(a).
[39]
The
Court held that a company under curatorship could be covered by
section 13 (1) (a) of the Prescription Act. The Court
saw no
reason why the insurance company could not be under curatorship
within the meaning of section 13 (1) (a). It held that:
‘
..if
assumption of total control by a curator is an (even if not only)
underlying rationale for the inclusion of persons under curatorship
in s13 (1) (a), as I think is the case, I see no good reason for
concluding that respondent is not a person under curatorship within
the meaning of the provision. It is as much a person under
curatorship as a company which has been placed under curatorship
eo
nomine’
[9]
[40]
The
ABP
4x4
judgment
endorsed
a view that the word ‘impediment’ covered a wide spectrum
of situations ranging from ‘those in which
it would not be
possible in law for the creditor to sue to those in which it might be
difficult or awkward, but not impossible,
to sue. In short, the
impediments range from the absolute to the relative.’
[10]
[41]
It
is further clear from the
ABP
4x4
judgment
that the phrase ‘person under curatorship’ has a wide
interpretation. That judgment, in my view, is no authority
for the
proposition that once a curator is appointed, then the impediment in
s13 finds no application. Furthermore, a person under
curatorship has
been held in
Van
Ryhn N.O v AA Ondering Assuransie-Assosiasie Beperk
[11]
to
include a person in respect of whom a
curator
ad litem
has been appointed in terms of section 24(1) (b) (iii) of the
Compulsory Motor Vehicle Act 56 of 1972 and therefore enjoying
protection
of that section. The running of the prescription period
was held to be suspended by the appointment of the
curator
ad litem
where
a person has a claim against the insurer in terms of that Act in
Van
Ryhn
decision.
[12]
The principle enunciated in that decision must also be upheld in this
case, albeit referring to a different statute.
[42]
I
am in agreement with counsel for both the plaintiff and second
defendant that there can be no room to ‘develop’ the
ordinary meaning of the words ‘person under curatorship’
in section 13(1)(a) in the manner contended for the first
defendant.
[43]
In
support of the plaintiff’s argument, Mr Oosthuizen argued on
behalf of the second defendant that the interpretation that
the first
defendant seeks to attach to section 13 of the Prescription Act would
be profoundly unjust.
To
support his view he referred to the decision of
Road
Accident Fund v Smith N.O
.
[13]
where
the court held at 102C to 102E:
‘
If
Parliament in enacting the 1989 Act, with the Agreement as a
schedule, which was to have the force of law as if it were an Act
of
Parliament (see s2(1) of the 1989 Act), or before that in enacting
the 1978 Act, had intended to deprive persons who had been
protected
from the running of prescription under the common law and later were
protected under s13(1)(a) of the Prescription Act
of any protection
at all from prescription, I would have expected much clearer language
than the language which was used. Put bluntly
the intention
attributed to Parliament by the appellant is that an insane person
who has not been detained, will, otherwise than
at common law and
under the Prescription Act, be exposed to the full rigorous
prescription. This notwithstanding that Parliament
must be taken to
have been aware of the fact that a result of the change of policy
regarding mentally ill persons which it approved
when it passed the
1973 Act was that a large number of persons previously described as
insane would not be detained under the mental
health legislation.
Such an interpretation as the appellant proposes would in my view be
profoundly unjust.’
[44]
A
further submission was made by Mr Eia that it is not so much that the
plaintiff’s claim has prescribed against the first
defendant,
in that the second defendant and/or the
curator
ad litem
failed to comply with the applicable and still valid statutory
regulations, but no liability has arisen against first defendant
due
to the failure to issue summons before the expiry of five years from
the date of occurrence of the motor vehicle accident.
In effect, the
first defendant argues that the Prescription Act, 68 of 1969
(‘
Prescription Act&rsquo
;) is of no application as not
only did the patient have a
curator
a litem
appointed
but a valid claim was properly and timeously lodged and filed with
the first defendant.
[45]
Apart
from the fact that this proposition differs from what has been
pleaded and from the issues contained in the stated case a
valid
claim was submitted within the two year period imposed in terms of
Article 62. The condition imposed on the institution of
the action
was fulfilled. That being done, liability was established. Once
Summons is not served in accordance with
Regulation 3(2)(c)(i)
within
the five year period, that becomes a prescription issue as pleaded by
the first defendant. In
Moloi
[14]
the
Court, approving of the view expressed in the decision of
Mbatha
v Multilateral Motor Vehicle Accidents Fund
[15]
held that
Regulation 3(2)
(a) (i) imposed a condition not in a proper
sense of the word but a prescriptive period.
[46]
Given
the fact that the claim was submitted within the two year period with
the first defendant the next issue to be determined
was whether the
claim had prescribed given the plaintiff’s failure to institute
summons within a year five year period from
the date on which the
claim arose.
Section 13(1)
(a) of the
Prescription Act which
I have
found applies in this case provides that the plaintiff’s claim
will only become prescribed one year after the impediment
of
curatorship had been lifted. That impediment can only be
removed by a Court Order.
[47]
The
issue of how
sections 13
and
16
of the
Prescription Act should
be
interpreted and their application
vis
a vis
other Acts of Parliament and in particular regulations promulgated
under the MMF Act has been dealt with and decided by the cases
that I
have referred to and in particular the
Moloi
decision,
which I find is binding on this Court.
[48]
In
the result, I find no merit in the first defendant’s special
plea and as such the matter is to proceed as agreed by the
parties in
their stated case. Costs shall follow the result.
[49]
I
therefore make the following order:
1.
The
first defendant’s Special Plea is dismissed and the first
defendant is directed to pay costs of the plaintiff including
costs
of two counsel and costs of the second defendant.
N
P BOQWANA
Judge
of the High Court
APPEARANCES
FOR
THE PLAINTIFF: Advocate W R E Duminy SC and Advocate T J Nel
INSTRUCTED
BY: Harold Gie Attorneys, Cape Town
FOR
THE FIRST DEFENDANT: Advocate P C Eia
INSTRUCTED
BY: Cliffe Dekker Hofmeyr Inc., Cape Town
FOR
THE SECOND DEFENDANT: Advocate A C Oosthuizen
INSTRUCTED
BY: Werksmans Inc., Cape Town
[1]
Act 93 of 1989
[2]
Act 68 of 1969
[3]
Act 56 of 1996
[4]
[2000] ZASCA 144
;
2001 (3) SA 546
(SCA) at 552 in paragraph 13
[5]
See Moloi & Others v Road Accident Fund supra
at paragraph 17
[6]
See Moloi & Others v Road Accident Fund supra
at paragraph 6 E
[7]
1999 (3) SA 924
(SCA)
[8]
ABP
4x4 Motor Dealers supra at paragraph 29
[9]
ABP
4x4 Motor Dealers supra at paragraph 40
[10]
ABP
4x4 Motor Dealers supra at paragraph 11
[11]
1986 (3) SA 460
(O)
[12]
Van
Ryhn N.O v AA Ondering Assuransie-Assosiasie Beperk supra at
462 to 463
[13]
1999
(1) SA 92 (SCA)
[14]
Moloi & Others v Road Accident Fund supra at
paragraphs 20 and 21
[15]
[1997] ZASCA 25
;
1997 (3) SA 713
(SCA) at 716C