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[2015] ZAWCHC 101
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Jethro N.O v Road Accident Fund (10534/2006) [2015] ZAWCHC 101 (29 July 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 10534/2006
DATE: 29 JULY 2015
In the matter between:
PAUL JOHN DANIEL JETHRO
N.O
.......................................................................................
Plaintiff
v
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
Court: Justice J Cloete
Heard: 14 May 2015
Delivered: 29 July 2015
JUDGMENT
CLOETE J:
Introduction
[1] The plaintiff is the curator ad
litem to Susanna Jacoba Agenbag (‘the patient’) who was
born on [1…..] [N…....]
[1.....] and who, for present
purposes, the parties accept has been in a persistent vegetative
state since 20 February 1994 when,
at the age of [2…. Years],
she suffered serious injuries whilst travelling as a passenger in a
motor vehicle which was involved
in an accident near Vredendal in the
Western Cape.
[2] On 14 February 1997 Adv S Mouton
(‘Mouton’) was appointed as curator ad litem to the
patient to institute an action
against the deceased estate of the
driver of the vehicle in which the patient had been travelling, one
Johannes Vermeulen, who
died at the scene (‘the identified
driver’) and Sentrasure, which was the designated insurer
(appointed agent) of the
identified driver in terms of the Schedule
to the former Multilateral Motor Vehicle Accidents Fund Act 93 of
1989 (‘the MMF
Act’). The claim against the deceased
estate of the identified driver was not pursued due to his lack of
means, although
it is common cause that this fact has no bearing on
the issues before me.
[3] On 7 July 1998 Mouton accepted R25
000 in settlement of the patient’s claim and signed the
relevant discharge form. This
amount was the maximum payable by an
appointed agent for such a claim in terms of regulation 2 of the
Multilateral Motor Vehicle
Accidents regulations promulgated under
the MMF Act (‘MMF regulations’).
[4] On 15 June 2003 the plaintiff was
appointed as curator ad litem to institute a claim based on
professional negligence against
Schreuders Attorneys, who had handled
the patient’s claim, and on 5 May 2004 action was duly
instituted by the plaintiff
against these attorneys for payment of
R8.9 million (‘the Schreuders case’). The cause of action
was that the attorneys
had negligently failed to: (a) ascertain that
the accident was caused partly by the negligence of the driver of an
unidentified
vehicle (‘the unidentified driver’) which
would have meant that an unlimited claim lay against the Multilateral
Motor
Vehicle Accidents Fund (‘MMF’) in terms of
regulation 3 of the MMF regulations; and (b) bring a claim based on
the
negligence of the unidentified driver within two years of the
accident thus, it was alleged, permitting the claim to prescribe.
[5] The attorneys defended the claim
and on 17 March 2005 an order was granted referring certain issues
for determination up front
in terms of rule 33(4). They were:
‘6.1 Whether, had the Defendant
instituted action against the Multilateral Motor Vehicle Accidents
Fund on behalf of the patient
on the basis of the facts pleaded by
the Plaintiff in paragraphs 4 and 5 (as amended) of the particulars
of claim, claiming her
full damages, such claim would probably have
succeeded in the absence of a challenge to the validity of regulation
3(1)(a)(v);
6.2 whether an attorney in the position
of Defendant would have been negligent in not advising his client to
pursue such claim,
assuming he had knowledge of the facts set out in
paragraphs 4 and 5 (as amended) of the particulars of claim.’
[In Padongelukkefonds v Prinsloo
1999
(3) SA 569
(SCA) regulation 3(1)(a)(v) was declared ultra vires and
thus invalid. It had provided that the MMF would not be liable for an
unlimited claim unless it was shown that the unidentified vehicle had
made physical contact with the claimant, his or her vehicle,
or
anything which caused the injuries or death.]
[6] The facts pleaded in the amended
paragraphs of the particulars of claim were that:
‘4. Die voorval is veroorsaak
deur die nalatigheid van beide VERMEULEN en ʼn onbekende
bestuurder van ʼn onbekende
motorvoertuig.
5. Die onbekende bestuurder was ook
nalatig deurdat hy:
(a) versuim het om enigsins en/of
behoorlik uit te kyk;
(b) versuim het om die onbekende
voertuig enigsins of behoorlik te beheer;
(c) toegelaat het dat die onbekende
voertuig van die pad afloop, stof en klippies opslaan wat teen die
voorruit van motorvoertuig
[CY 3………] (onmiddelik
agter hom) gespat het, die uitsig van die bestuurder VERMEULEN
belemmer het, en veroorsaak
het dat die genoemde voertuig die pad
verlaat en omgeslaan het;
(d) te vinnig gery het in die
omstandighede.
5.1 Alle moontlike pogings was
aangewend om die onbekende bestuurder se besonderhede vas te stel,
maar sodanige pogings was onsuksesvol.’
[7] For purposes of determination of
those issues the parties assumed that the accident occurred as the
plaintiff had pleaded. On
9 June 2005 Foxcroft J ruled in the
plaintiff’s favour, finding that Schreuders had been negligent
in failing to institute
an unlimited claim on the patient’s
behalf. It was not necessary for the court to make a finding on the
issue of prescription.
[8] On 22 February 2006 the plaintiff
was appointed as curator ad litem to institute the unlimited claim
against the defendant (the
present action) in the amount of R8.9
million. The parties accept that this was the purpose of his
appointment although the terms
of the order itself were couched
widely, authorising the plaintiff ‘om alle noodsaaklike stappe
te neem wat nodig is om ʼn
aksie (eis)… in te stel en te
finaliseer…’.
[9] The present action was instituted
on 28 September 2006 in that amount, being the total value of the
patient’s unlimited
claim less the sum of R25 000. On 29 June
2011 a deed of settlement was concluded in the Schreuders case in
which the plaintiff
accepted payment of R1 035 000 on the patient’s
behalf, such payment being made without admission of liability.
[10] In the present action the
defendant filed both a plea and special plea. These were subsequently
amended. In an order granted
on 9 September 2014 the issues raised in
the special plea were separated in terms of rule 33(4) and it is
these issues which were
argued before me, as well as certain others
which the parties agreed should likewise be determined.
Issues for determination
[11] The issues are as follows:
11.1 whether the signature of the
discharge form by Mouton has the effect of precluding the plaintiff
from succeeding in the present
action;
11.2 whether the absence of an
affidavit prescribed by regulation 3 of the regulations promulgated
under the MMF Act debars the
plaintiff from succeeding, should it be
found that the patient has been in a persistent vegetative state
since the date of the
accident;
11.3 whether the fact that the current
claim for compensation was not submitted to the defendant within the
time prescribed by regulation
3(2) of the aforementioned regulations
debars the plaintiff from succeeding in recovering damages on the
patient’s behalf;
11.4 whether the plaintiff could
institute the present unlimited claim against the defendant after the
patient’s mother admitted
in an affidavit dated 24 April 2003
that the claim had prescribed; and
11.5 whether the plaintiff and/or the
patient’s mother (in her capacity as curator bonis) have waived
or abandoned her claim
for general damages which is part of her
present unlimited claim.
[12] In order to determine these issues
I will refer where necessary to other events and legal developments
which occurred after
the accident.
[13] It is also common cause that the
patient’s claim is governed by the provisions of the MMF Act
because s 28 of the Road
Accident Fund Act 56 of 1996 (‘the RAF
Act’) stipulates that any claims arising prior to its enactment
on 1 May 1997
shall be dealt with as if it had not been passed.
The first issue: settlement of the
limited claim
[14] At the heart of this issue is
whether Mouton, in signing the discharge form, accepted R25 000 in
full and final settlement
of all claims which the patient might have
against the defendant arising from the accident.
[15] This in turn involves the
interpretation of the order granted on 14 February 1997 in which
Mouton was appointed as curator
ad litem.
[16] To contextualise the meaning of
that order the plaintiff relies inter alia on certain undisputed
facts which are contained
in the affidavits of the patient’s
mother and her attorney filed in support of the application for
Mouton’s appointment.
[17] Although the defendant does not
object to reference being made to the papers filed in that
application, it contends that the
plaintiff may not rely thereon to
contradict, alter, add to or vary the terms of the discharge form
because any such reliance is
hit by the parol evidence rule and cites
in support thereof KPMG Chartered Accountants (SA) v Securefin Ltd
and Another
2009 (4) SA 399
(SCA) at para [39].
[18] However the plaintiff does not
rely on this evidence to interpret the discharge form, which is a
contract, but rather to interpret
the order which conferred certain
powers on Mouton.
[19] Furthermore, in Standard Bank of
South Africa Ltd v Swanepoel NO (20062/2014)
[2015] ZASCA 71
(22 May
2015) at para [19] the Supreme Court of Appeal referred to KPMG
(supra) at para [39] and stated that:
‘It points out only that parol
evidence may not be led to alter or vary the terms of a contract. And
it says expressly that
in interpreting a contract the Court must have
regard to the context, or factual matrix, which in this case would be
all the documents
relied upon and the trust deed.’
[See also First National Bank – A
division of FirstRand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and
Another (1054/2013)
[2015] ZASCA 6
9 March 2015] at para [16]].
[20] In Natal Joint Municipal Pension
Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at para [18] it
was held that:
‘The present state of the law can
be expressed as follows: Interpretation is the process of attributing
meaning to the words
used in a document, be it legislation, some
other statutory instrument, or contract, having regard to the context
provided by reading
the particular provision or provisions in the
light of the document as a whole and the circumstances attendant upon
its coming
into existence. Whatever the nature of the document,
consideration must be given to the language used in the light of the
ordinary
rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and
the material
known to those responsible for its production. Where
more than one meaning is possible each possibility must be weighed in
the
light of all these factors. The process is objective, not
subjective. A sensible meaning is to be preferred to one that leads
to
insensible or unbusinesslike results or undermines the apparent
purpose of the document. Judges must be alert to, and guard against,
the temptation to substitute what they regard as reasonable, sensible
or businesslike for the words actually used. To do so in
regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context
it is to
make a contract for the parties other than the one they in fact made.
The “inevitable point of departure is the
language of the
provision itself”, read in context and having regard to the
purpose of the provision and the background to
the preparation and
production of the document.’
[21] Also relevant is the following
passage from Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal
South Africa and Others
2013 (2) SA 204
(SCA) at paras [13] –
[14]:
‘[13] As indicated earlier in the
judgment, the determination of this appeal depends on the proper
interpretation of the Preller
J order. The starting point is to
determine the manifest purpose of the order. In interpreting a
judgment or order, the court’s
intention is to be ascertained
primarily from the language of the judgment or order in accordance
with the usual, well-known rules
relating to the interpretation of
documents. As in the case of a document, the judgment or order and
the court’s reasons
for giving it must be read as a whole in
order to ascertain its intention. See Firestone South Africa (Pty)
Ltd v Genticuro AG
1977 (4) SA 298
(A).
[14] It is necessary to place the
Preller J order in proper perspective and to examine its terms and
purpose in order to determine
the intention of the learned judge when
he used the word “initiate”. In so doing one has to
consider the context in
which the order was made.’
[22] Having regard to these principles
the following emerges. The patient’s mother, Mrs Martha
Agenbag, was the applicant
in the application for the appointment of
Mouton as curator ad litem. In her founding affidavit she declared
that she had instructed
new attorneys, Buchanan Boyes, to institute
claims in terms of the MMF Act against Sentrasure and the identified
driver’s
deceased estate and that she wished Mouton to be
appointed to assist the patient in those claims.
[23] Mr Christoff Jooste of Buchanan
Boyes deposed to a supporting affidavit in which he specifically
confirmed his instruction
to institute such claims. Nowhere in either
affidavit was mention made of the existence or even the possibility
of a claim against
an unidentified driver. Both deponents made it
clear that the sole purpose of Mouton’s appointment would be
for him to deal
only with those two claims.
[24] The consent signed by Mouton in
anticipation of his appointment declared that he had read the papers
and was willing to be
so appointed. It can thus be accepted that
Mouton himself knew exactly what his limited powers would be in the
event of the application
succeeding.
[25] The order of 14 February 1997
expressly stipulates that Mouton was authorised and directed to
institute only those two claims
and ‘om enige sodanige aksie te
skik’. The literal translation of ‘enige sodanige aksie’
is ‘any
such claim’ (Pharos Afrikaans/English Dictionary
2005 ed). The ordinary meaning of ‘any such claim’ read
in the
light of the order as a whole leads me to conclude that the
only reasonable interpretation to be placed thereon is that Mouton’s
powers extended no further than to: (a) institute claims against
Sentrasure and the identified driver’s deceased estate;
and (b)
settle only those claims and not any other claim
which the patient might have.
[26] Support for this interpretation is
to be found in the following parts of the discharge form subsequently
signed by Mouton in
his aforementioned capacity on 7 July 1998,
namely that:
25.1 The reference to any unidentified
vehicle involved was marked by him as ‘not applicable’,
as was that to ‘any
other vehicles involved in the accident’;
and
25.2 despite the actual value of the
claim against Sentrasure and the identified driver already being
greater at that stage, it
was recorded by Mouton that it was limited
to only R25 000.
[27] It is so that Mouton proceeded to
acknowledge that he accepted payment of R25 000 ‘in full and
final settlement of all
and any claims of whatever nature, present or
future’ against the MMF arising from the accident. As pointed
out by plaintiff’s
counsel, had the patient being capable of
managing her own affairs and had she signed the discharge form
herself, she might well
have been precluded from later bringing an
unlimited claim because the acknowledgment contained in the discharge
form is cast in
wide terms. However Mouton’s acknowledgement
must be seen in its proper context, namely that: (a) he could only
ever have
acted within the confines of the limited powers conferred
on him by the order; and (b) the only claims which he was authorised
to settle in terms of that order were those which lay against
Sentrasure and the identified driver’s deceased estate.
[28] It is the defendant’s
contention that Mouton’s signature of the discharge form
resulted in a compromise, the purpose
being to put an end to any
further claims. It is argued that the signed discharge form has the
same effect as res judicata and
thus constitutes a bar to the patient
pursuing an unlimited claim, save in the event of default on payment
by the MMF which did
not occur.
[29] In support hereof the defendant
relies on Van Zyl v Niemann
1964 (4) SA 661
(A) at 669H-670A and
Hlobo v Multilateral Motor Vehicle Accidents Fund
2001 (2) SA 59
(SCA) at para [10]. Van Zyl merely confirms at 669H that ‘[D]it
is duidelik dat ʼn skikkingsooreenkoms dieselfde uitwerking
het
as res judicata en gevolglik ʼn aksie op die oorspronklike
skuldoorsaak uitsluit’. Of course in the present matter
the
original cause of action is the accident. However three potential
claims arose therefrom, and Mouton was only authorised by
an order of
court to advance and to compromise two of them (although it is
accepted that pursuit of an unlimited claim would have
dispensed with
the limited claim). The defendant correctly points out that it is not
a requirement for a valid compromise that
the parties thereto must
have known of their comprised rights: Gollach & Gomperts (1967)
(Pty) Ltd v Universal Mills &
Produce Co (Pty) Ltd and Others
1978 (1) SA 914
(AD) at 922D-923D. To my mind however this does not
adequately address the fundamental issue because irrespective of
whether Mouton
was aware of the existence or possibility of a claim
against an unidentified driver when he signed the discharge form, he
was not
authorised to advance that claim, let alone to compromise it.
It was never Mouton’s claim but always that of the patient’s.
To the extent therefore that the defendant contends that Mouton
nonetheless purported to advance and to compromise that claim,
then
he exceeded his authority and he could not have bound the patient in
any event. In this regard it is noted that the defendant
(correctly)
does not suggest that the order of February 1997 conferred on Mouton
any form of ostensible authority insofar as the
patient’s
claims are concerned.
[30] In Hlobo the Supreme Court of
Appeal dealt with the ambit of authority of a legal representative in
the execution of his or
her client’s mandate and confirmed at
para [10] that it may include in certain instances compromising the
client’s
claim in the absence of instructions to the contrary
(see also MEC for Economic Affairs, Environment and Tourism, Eastern
Cape
v Kruizenga and Another
2010 (4) SA 122
(SCA) at para [11]).
However in the present matter Mouton did not act as the patient’s
legal representative and was not carrying
out a client’s
mandate. When he was appointed as curator ad litem he stepped into
the patient’s shoes but only to the
limited extent that the
court order authorised him to do so. If the purpose of the order was
to authorise Mouton to advance and
compromise any of the patient’s
claims of whatsoever nature against the defendant arising from the
accident then it would
have said so.
[31] Some support for my view that
Mouton’s powers as curator ad litem were limited to the
confines of the order appointing
him as such is to be found in Kotze
NO v Santam Insurance Ltd
1994 (1) SA 237
(CPD), where it was
accepted that because the initial order had only authorised the
curator ad litem to investigate a specific
issue, he could not
proceed to institute action against the defendant without first
approaching court again for an order conferring
that power upon him:
‘Counsel before us were agreed
that the effect of the order appointing Adv Kotze as curator ad litem
could not have been to
empower the curator to proceed with the trial
action without further ado, but was only to authorise him to
investigate the legal
question raised in the special plea and to
decide how to proceed with the conduct of the litigation. That was
what was intended
by the draft order placed before my Brother King
and the Court order went no further.’ [At 243F-G].
[32] The approach sanctioned in the
court a quo was accepted, with apparent approval, when the matter
served before the then Appellate
Division in Santam Insurance Ltd v
Booi
[1995] ZASCA 52
;
1995 (3) SA 301
(AD) at 309G-I:
‘I may add that counsel of the
parties to the present appeal
“were agreed that the effect of
the order appointing Adv Kotze as curator ad litem could not have
been to empower the curator
to proceed with the trial action without
further ado, but was only to authorise him to investigate the legal
question raised in
the special plea and to decide how to proceed with
the conduct of the litigation”.
That was the effect of the order
granted by King J on 12 May 1993.’
[33] Having regard to the above, it is
my view that because Mouton had no authority to compromise the
unlimited claim he could not
have done so, irrespective of whether he
was aware of its existence or not. I am thus persuaded that the
signature of the discharge
form by Mouton does not have the effect of
precluding the plaintiff from succeeding in the present action.
The second issue: absence of regulation
3(1) affidavit
[34] Regulation 3(1)(a)(iii) of the MMF
regulations reads as follows:
‘(3) Liability of the MMF in
respect of Claims Arising from Driving of Motor Vehicle in case where
Identity of Neither Owner
nor Driver thereof established.—(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—
(i) …..
(ii) …..
(iii) the claimant submitted, if
reasonably possible, within 14 days after he was in a position to do
so an affidavit to the police
in which particulars of the occurrence
that gave rise to the claim concerned are fully set out;’
[emphasis supplied]
[35] At the commencement of argument I
was informed that the parties had agreed on a bundle of pleadings,
affidavits and documents
to which reference could be made during the
hearing and which were to be regarded as correctly reflecting the
contents of the various
court files.
[36] Included therein were the
particulars of claim in the Schreuders case, the relevant paragraphs
of which read as follows:
‘9. Gedurende of omtrent 4
Augustus 1994 en te Garies het die pasiënt se vader, JOHANNES
AGENBAG, opdrag aan die Verweerder
gegee om ʼn derdeparty-eis
namens die pasiënt in te stel.
10. Dit was ʼn geïmpliseerde,
alternatiewelik, ʼn stilswyende term van die ooreenkoms tussen
die pasiënt se vader
en Mnr ANDRIES SCHREUDER, ʼn vennoot
van die Verweerder, dat hy die redelike standaard van kennis,
bekwaamheid en toewyding
wat van ʼn redelike man, naamlik in die
geval, die gemiddelde prokureur in die huidige omstandighede, verwag
kon word, sou
uitoefen in die behartiging van die pasiënt se eis
(saak).
10.1 Daar was dus ʼn deliktuele
regsplig op die voormelde prokureur om toe te sien en te sorg dat hy
alle redelike stappe neem
soos wat van hom verwag was in die
uitoefening van sy mandaat om die pasiënt se eis na behore in te
stel.
11. Die vermelde prokureur het sy
mandaat teenoor die pasiënt verbreek deurdat hy onregmatiglik en
nalatiglik versuim het om:
(a) die redelike standaard van kennis;
(b) bekwaamheid;
(c) die redelike toewydig, te handhaaf
soos wat vereis word van ʼn prokureur in die lewering van
professionele dienste aan sy
kliënt; en in die redelike en
behoorlike uitoefening van sy plig en mandaat, ʼn onbeperkte
gemeenregtelike eis teen die
Padongelukkefonds in te stel ingevolge
die Multilaterale Motorvoertuigongelukkefondswet 93 van 1989 (“die
Wet”), gelees
met die gepaardgaande en relevant regulasies
daarvan.’
[37] Also included was the application
by the patient’s mother for the appointment of the plaintiff as
curator ad litem to
institute the unlimited claim against the
defendant. The relevant paragraphs of her founding affidavit read as
follows:
‘9. Op 8 Junie 1994 (it is common
cause that the date of 1984 in the affidavit is incorrect) is ʼn
Geregtelike Doodsondersoek
ingevolge Wet 58 van 1959 met betrekking
tot die ongeluk afgehandel en is bevind dat die dood van die
bestuurder (“Vermeulen”)
nie veroorsaak is deur die
handeling of versuim wat ʼn misdryf aan die kant van enige
persoon uitmaak nie.
10. Alreeds tydens die verhoor van die
Geregtelike Doodsondersoek was daar ʼn eedsverklaring van: (a)
ene Frederik Christoffel
(“Truter”) gedateer 20 Februarie
1994 beskikbaar (ʼn Afskrif van hierdie eedsverklaring word
hierby aangeheg, gemerk
Aanhangsel “FCT”); en (b) Jacobus
Groenewald (ʼn Afskrif van hierdie eedsverklaring word hierby
aangeheg, gemerk
Aanhangsel “LG”). Hierin beweer Truter
dat hy ook ʼn passasier in Vermeulen se voertuig was. Groenewald
bevestig
ook in sy verklaring dat daar twee motorvoertuie by die
voorval betrokke was. Onderwyl Vermeulen-hulle gery het, het ʼn
wit
Isuzu bakkie (“ʼn onbekende voertuig”) verbygekom
waarvan die registrasie nommer en besonderhede omtrent beide die
bestuurder en die eienaar onbekende is, Vermeulen se voertuig
verbygesteek. In die proses het die onbekende voertuig na links
gedraai en op die gruis beweeg. Die gruis het so ʼn geweldige
stof of ʼn “rook” veroorsaak en van die gruisklippies
het teen Vermeulen se voorste ruit gespat dat dit Vermeulen se uitsig
belemmer het. Vermeulen het toe beheer oor sy voertuig verloor,
die
pad verlaat en sy voertuig het omgeslaan. As gevolg van hierdie
ongeluk is Vermeulen dood en die pasiënt nog steeds in
ʼn
koma…
13. Op 9 Junie 2005 het Sy Edele,
Regter Foxcroft, onder Saaknommer 4389/2004, bevind dat die pasiënt
se voormalige prokureur,
Andries Schreuder wel nalatig was om slegs ʼn
beperkte eis en nie ʼn eis vir algemene skade teen die Fonds in
te gestel
het nie. ʼn Afskrif van hierdie uitspraak word hierby
aangeheg, gemerk Aanhangsel “UIT”…
17. Dit is duidelik met respek dat die
pasiënt nie in staat is om haar eie sake te behartig of die
voorgenome eis in te stel
nie. Gevolglik is dit noodsaaklik dat: (a)
ʼn curator ad litem aangestel word ten einde haar by te staan in
die voorgenome
aksie teen die voorgenome Verweerder in te stel; en
(b) ʼn curator bonis aangestel word om die administrasie van
enige vergoeding
wat sy mag ontvang, asook haar boedel en sake te
behartig.
18. Indien die voorgenome eis suksesvol
is, sal daar op ʼn latere stadium aansoek gedoen word by hierdie
Agbare Hof om die aanstelling
van: (a) curator bonis; en (b) curator
personae van die pasiënt. Ek is bereidwillig om as curator bonis
op te tree indien
dit hierdie Agbare Hof sou behaag.’
[emphasis supplied]
[38] Given that the issue under
consideration was formulated by the parties to relate only to the
absence of the regulation 3(1)(a)(iii)
affidavit, the plaintiff’s
counsel confined their submissions accordingly.
[39] The plaintiff submits that
regulation 3(1)(a)(iii) is not intended to non-suit a claimant who is
unable, due to circumstances
beyond his or her control, to make such
an affidavit because it is only required if it is reasonably possible
for the claimant
to do so. In support of this submission the
plaintiff referred to Road Accident Fund v Thugwana
2004 (3) SA 169
(SCA) where the Supreme Court of Appeal considered the successor to
this regulation, being regulation 2(1)(c) contained in Government
Gazette 17939 of 25 April 1997, and which is in virtually identical
terms. At para [7] it held that:
‘If a claimant is physically or
mentally incapable of making an affidavit, it cannot be said that he
or she is in a position
to do so.’
[40] Given the parties’ agreement
that for purposes of adjudication of the separated issues the court
should assume that the
patient has been in a persistent vegetative
state since the collision, it must logically follow that she has not
been physically
or mentally capable of making the regulation
3(1)(a)(iii) affidavit and it has thus not been ‘reasonably
possible’
for her to do so.
[41] The defendant however contends
that the patient’s interests should nonetheless have been
protected by her mother, either
in that capacity or in her capacity
as curator bonis (it is not suggested that any such obligation fell
on Mouton or the plaintiff).
The defendant sought to broaden the
ambit of this limited issue by submitting that no explanation has
been provided as to what
reasonable steps were taken (presumably by
the patient’s mother) to identify the owner or driver of the
unidentified vehicle
(in accordance with regulation 3(1)(a)(ii)) and,
because no affidavit has been submitted, the defendant is not liable
for the unlimited
claim.
[42] In support hereof the defendant
relies on Mbatha v Multilateral Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997 (3)
SA 713
(SCA) at 718F-H and Geldenhuys & Joubert v Van Wyk &
Another
2005 (2) SA 512
(SCA) at paras [24] and [29].
[43] However in Mbatha the Supreme
Court of Appeal considered regulation 3(2)(a)(i) which pertains to
the lodging of an unlimited
claim against the MMF within two years
from the date upon which it arises, and whether or not this
regulation was ultra vires the
MMF Act. It was in that context that
the findings at the passage relied upon by the defendant were made.
There was furthermore
no suggestion that the claimant in Mbatha had
suffered from any physical or mental impairment.
[44] Geldenhuys dealt with the
corresponding provisions in the later
Road Accident Fund Act 56 of
1996
and cited Mbatha with approval at para [24]. At para [29] the
Supreme Court of Appeal made the point that it had not been asked
to
determine whether an unassisted person under a legal or other
disability (for example a minor without a guardian) would be hit
by
the two-year prescription period. It is thus my view that the
aforementioned authorities do not assist the defendant.
[45] To my mind there was no obligation
on the patient’s mother, in her capacity as such, to ensure
that she submitted the
affidavit on the patient’s behalf. The
patient was not a minor when the accident occurred and immediately
prior to the accident
did not suffer from any legal or other
disability which in the ordinary course might have placed such an
obligation on someone
other than her. The patient’s mother was
eventually only issued with letters of curatorship bonis by the
Master on 4 September
2003, nine years after the accident, in
circumstances which are entirely unclear. Furthermore, the extracts
which I have quoted
from the particulars of claim in the Schreuders
case coupled with the finding of Foxcroft J, strongly indicate that
the patient’s
parents rather relied on Schreuders Attorneys to
protect her interests. In these circumstances the defendant’s
argument cannot
hold water.
[46] I accordingly find that the
absence of the
regulation 3
affidavit does not debar the plaintiff
from succeeding, should it be found that the patient has been in a
persistent vegetative
state since the date of the accident.
The third issue: failure to lodge the
unlimited claim within the two-year period prescribed by
regulation
3(2)
[47] It is common cause that the
unlimited claim was not lodged with the MMF within the prescribed
two-year period from the date
of the accident as required by
regulation 3(2)(a)
of the MMF regulations which provide that:
‘ (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.’
[48] S 13(1)(a) of the Prescription Act
68 of 1969 (‘the
Prescription Act&rsquo
;) stipulates that:
’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);…
and
(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) … 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).’
[emphasis supplied]
[49]
S 16
of the
Prescription Act, in
general terms, makes its provisions (including
s 13)
applicable to
all debts other than where an Act of Parliament prescribes a
different period.
[50] In Moloi and Others v Road
Accident Fund
[2000] ZASCA 144
;
2001 (3) SA 546
(SCA) the Supreme Court of Appeal
considered regulation 3(2)(a) in light of
ss 13
and
16
of the
Prescription Act. It
held at paras [14] – [17] that the
regulation was invalid as being contrary to
s 16
of that Act.
[51] Although the court dealt
specifically with the position of a claimant who had been a minor at
the date of a collision, the
ratio applies equally to the patient,
being a person ‘under curatorship or … prevented by
superior force …
from interrupting the running of prescription
….’ as envisaged by s 13(1)(a) and she is thus in the
same position
as a minor. Given the assumption that, for purposes of
these proceedings, the patient remains in a permanent vegetative
state,
she therefore similarly enjoys the protection afforded by
Moloi and completion of the statutory prescriptive period remains
delayed.
[52] Although the Supreme Court of
Appeal held in Geldenhuys and Joubert (supra) that the corresponding
provisions in the
Road Accident Fund Act 56 of 1996
and its
regulations were valid, and expressed doubt as to the correctness of
the decision in Moloi, it did not overrule that decision
and this
court is accordingly bound thereby. Indeed, I did not understand the
defendant to seriously contend otherwise. The defendant
rather
advanced arguments similar to those in respect of the second issue,
namely that the obligation fell on the patient’s
mother to have
complied with
regulation 3(2)(a).
To my mind, the same considerations
in rejecting the defendant’s arguments apply to the third
issue. In any event
s 13(1)(a)
of the
Prescription Act specifically
excludes the running of prescription (as provided therein) against a
person under curatorship.
[53] It follows that this issue must be
decided in the plaintiff’s favour.
The fourth issue: whether the plaintiff
could institute the unlimited claim subsequent to the admission by
the patient’s mother
that it had prescribed
[54] In her affidavit filed in support
of the application for the plaintiff’s appointment as a curator
ad litem in the Schreuders
case, the patient’s mother made the
following allegations:
’17. Die vermelde prokureur het
sy mandaat teenoor die pasiënt verbreek, deurdat hy
onregmatiglik en nalatiglik versuim
het om in die redelike en
behoorlike uitoefening van sy plig en mandaat ʼn onbeperkte
gemeenregtelike eis teen die Padongelukkefonds
in te stel ingevolge
die Multilaterale Motorvoertuigongelukkefondswet 93 van 1989 (“die
Wet”), gelees met die gepaardgaande
en relevante regulasies
daarvan.
18. Vermelde gemeenregtelike eis moes
binne twee jaar na die ongeluk ingestel gewees het. Dit was nie deur
Mnr Schreuder gedoen
nie. Gevolglik het hierdie gemeenregtelike eis
om algemene skadevergoeding alreeds verjaar.’
[55] In similar vein, the defendant
sought to attribute to the patient the state of mind of the patient’s
mother. In my view,
the short answer to this is that, even if it were
possible to do so (which for the reasons already given I do not
accept) the admission
by the patient’s mother has no legal
effect in light of the decision in Moloi which preceded it.
[56] As pointed out by the plaintiff’s
counsel, an incorrect concession of law made by a party’s legal
representative
is not binding on the party concerned. Logic dictates
that such a concession which directly affects the patient, made by a
person
without any authority to bind her (in this instance, the
patient’s mother) can scarcely have more effect.
[57] It follows that the defendant’s
argument on the fourth issue must fail.
The fifth issue: whether the plaintiff
and / or the patient’s mother (in her capacity as curator
bonis) have waived or abandoned
her claim for general damages which
is part of her present unlimited claim
[58] As I understand it, the
defendant’s argument is that by instituting the action in the
Schreuders case the plaintiff and
/ or the patient’s mother (as
the applicant in the application for the plaintiff’s
appointment as curator ad litem
for this purpose) waived or abandoned
the patient’s claim for general damages against the defendant.
[59] In support of this argument the
defendant contends that since 2003 (when the patient’s mother
deposed to the affidavit
in support of that application) the ‘outward
manifestation’ of the plaintiff and / or the patient’s
mother has
been the explicit admission that the unlimited claim had
prescribed and that Schreuders Attorneys were negligent in allowing
it
to prescribe, and so, the argument goes, the patient cannot both
have her cake and eat it.
[60] The defendant relies on various
authorities but I will not refer to all of them due to overlap. In
Road Accident Fund v Mothupi
2000 (4) SA 38
(SCA) at paras [15] –
[19] it was held that:
‘Inferred waiver:
[15] Waiver is first and foremost a
matter of intention. Whether it is the waiver of a right or a
remedy, a privilege or power,
an interest or benefit, and whether in
unilateral or bilateral form, the starting point invariably is the
will of the party said
to have waived it…
[16] The test to determine intention
to waive has been said to be objective (cf Palmer v Poulter
1983 (4)
SA 11
(T) at 20C-21A; Multilateral Motor Vehicle Accidents Fund v
Meyerowitz
1995 (1) SA 23
(C) at 26H-27G; Bekazaku Properties (Pty)
Ltd v Pam Golding Properties (Pty) Ltd
1996 (2) SA 537
(C) at
543A-544D). That means, first, that intention to waive, like
intention generally, is adjudged by its outward manifestations
(cf
Traub v Barclays National Bank Ltd; Kalk v Barclays National Bank Ltd
1983 (3) SA 619
(A) at 634H-635D; Botha (now Griessel) and Another v
Finanscredit (Pty) Ltd
1989 (3) SA 773
(A) at 792B-E); secondly, that
mental reservations, not communicated, are of no legal consequence
(Mutual Life Insurance Co of
New York v Ingle
1910 TS 540
at 550);
and, thirdly, that the outward manifestations of intention are
adjudged from the perspective of the other party concerned,
that is
to say, from the perspective of the latter’s notional alter
ego, the reasonable person standing in his shoes.
[17] The third aspect has not yet been
finally settled by this Court, or so it would seem (cf Thomas v Henry
and Another 1985 (3)
SA 889 (A) at 896G-898C). What the one party now
says he then intended and what his opposite number now says he then
believed may
still be relevant (Thomas v Henry and Another (supra at
898A-C)), although not necessarily conclusive. The knowledge and
appreciation
of the party alleged to have waived is furthermore an
axiomatic aspect of waiver (Martin v De Kock
1948 (2) SA 719
(A) at
732-3). With those two qualifications I propose, in this judgment, to
apply the test of the notional alter ego.
[18] The outward manifestations can
consist of words; of some other form of conduct from which the
intention to waive is inferred;
or even of inaction or silence where
a duty to act or speak exists…
[19] Because no one is presumed to
waive his rights (cf Ellis and Others v Laubscher
1956 (4) SA 692
(A)
at 702E-F), one, the onus is on the party alleging it and, two, clear
proof is required of an intention to do so (Hepner v
Roodepoort-Maraisburg Town Council
1962 (4) SA 772
(A) at 778D-779A;
Borstlap v Spangenberg en Andere
1974 (3) SA 695
(A) at 704F-H). The
conduct from which waiver is inferred, so it has frequently been
stated, must be unequivocal, that is to say,
consistent with no other
hypothesis.’
[61] From Mothupi it is evident that:
(a) the defendant bears the onus; (b) clear proof of waiver is
required; and (c) conduct from
which waiver is to be inferred must be
unequivocal and capable of no other interpretation.
[62] The findings of the court in
Mosholi v Putco (Pty) Ltd
2011 (5) SA 38
(GNP) at 48H-49G, also
relied upon by the defendant, serve to illustrate what is required to
persuade a court of an unequivocal
waiver:
‘In die onderhawige geval word
staatgemaak daarop dat die eiseres uitdruklik by ooreenkoms afstand
gedoen het van haar regte
deur die Fonds kwyt te skeld van sy
onbeperkte aanspreeklikheid wat hy teenoor die eiseres sou gehad het.
Dit is in hierdie verband
belangrik om daarop te let dat geen
getuienis hoegenaamd voor die hof geplaas is oor die konteks en die
agtergrondsomstandighede
waarteen die gemelde kontrak tussen die
eiseres en die Fonds gesluit is nie, behalwe dat daar aan die hof
meegedeel is dat dit
'n skikking was wat aangegaan is nadat die
eiseres die Fonds vir sy statutêre maksimum as versekeraar ten
aansien van die
Putco bus van R25 000 in die landdroshof aangespreek
het. 'n Hof sal daarteen waak om die bepalings van 'n kontrak of die
kontrak
self in isolasie te interpreter, en alhoewel ons howe slegs
in geval van dubbelsinnigheid die sogenaamde omringende omstandighede
van 'n kontrak as uitlegmiddel toegelaat het, is mettertyd aanvaar
dat die agtergrondsomstandighede altyd toelaatbaar was. Vele
sake
toon aan dat die onderskeid tussen agtergrondsomstandighede en
omringende omstandighede soms baie moeilik is om te bepaal,
en daar
was reeds sterk obiter dicta van die eenparige banke van die Hoogste
Hof van Appèl het beslis dat hierdie onderskeid
oorboord
gegooi behoort te word. Sien: KPMG Chartered Accountants (SA) v
Securefin Ltd and Another
2000 (4) SA 399
(HHA) ([2009]
2 All SA 523)
paras 38 and 39; Pangpourne Properties Ltd v Gill & Ramsden (Pty)
Ltd
1996 (1) SA 1182
(A) op 1187E-F; Masstores (Pty) Ltd v Murray &
Roberts Construction (Pty) Ltd and Another
[2008] ZASCA 94
;
2008 (6) SA 654
(HHA).
Dit is dus om hierdie rede dat dit vir
'n hof ongewens is om die finale betekenis van 'n kontrak te bepaal
voordat die getuienis
van die partye ten aansien daarvan volledig
aangebied en geventileer is.
Nou is dit so dat in die onderhawige
geval die verweerder slegs staatmaak op die feit dat die
skikkingskontrak aangegaan is en dat
geen getuienis hoegenaamd
omringend die aangaan van die gemelde kontrak is aangebied nie. Van
groot belang in hierdie verband is
dat, toe die eiseres–wat na
bewering haar onbeperkte eis teen die Fonds "weggeteken"
het en afstand daarvan gedoen
het toe sy die skikkingsooreenkoms
aangegaan het–getuig het, nie 'n enkele vraag in hierdie
verband aan haar gevra is nie.
Geen stelling is aan haar gemaak om te
bepaal of sy met volle kennis van haar regte afstand gedoen het van
hierdie sogenaamde onbeperkte
eis teen die Fonds toe sy die
skikkingsooreenkoms aangegaan het nie. Mnr Potgieter het inderdaad
geen vrae hoegenaamd aan die Eiseres
gevra nie.
In die lig van die bietjie
agtergrondsgetuienis wat wel voor my geplaas was waarteen die
skikkingsooreenkoms aangegaan is, is ek
hoegenaamd nie oortuig dat
die eiseres by aangaan van die skikkingsooreenkoms enigsins die
bedoeling gehad het om afstand te doen
van 'n moontlike onbeperkte
eis wat sy teen die Fonds gehad het nie.’
[63] In considering the defendant’s
argument the starting point is to determine who exactly it was who
was authorised to waive
the patient’s claim for general damages
against the defendant. For the reasons already given, I am not
persuaded that the
patient’s mother had any authority to do so,
whether in her personal capacity or in her capacity as curator bonis.
[64] It is apparent from both the
application to have the plaintiff appointed as curator ad litem in
the Schreuders case (in 2003),
as well as the particulars of claim in
the action that followed (during 2004) that no-one involved at the
time (not least of all
the plaintiff) was aware of the decision in
Moloi; or put differently, there is no clear proof of this or of any
unequivocal conduct
from which such a conclusion could be drawn. The
indications are rather to the contrary, given the action against
Schreuders Attorneys
on the basis that their professional negligence
had caused the claim to prescribe. Waiver is not lightly presumed;
and one cannot
waive or abandon a right of which one is unaware. It
follows that I am unable to find on this basis that when the
plaintiff was
appointed as curator ad litem in the Schreuders case
and instituted the subsequent action against those attorneys, he knew
of the
existence of an unlimited claim against the defendant but
instead elected to proceed against Schreuder’s attorneys on the
grounds of professional negligence.
[65] There is an additional and
important consideration, namely that the plaintiff was not clothed
with any authority to deal with
the unlimited claim against the
defendant until, at the earliest 22 February 2006, when his powers
were extended accordingly by
the order made on that date.
Furthermore, since that date, the steps that were taken against the
defendant rather evidence conduct
inconsistent with a waiver or
abandonment of the unlimited claim against it. The settlement of the
action against Schreuders Attorneys
on 29 June 2011 post-dated litis
contestatio in the present action (the plaintiff’s replication
to the defendant’s
special plea was filed on 17 August 2007)
and was concluded without admission of liability. The defendant was
not a party to this
settlement, and there is insufficient information
before the court at this stage as to the circumstances in which it
was concluded.
In my view it would also be going too far to find that
settlement of the Schreuders case put paid to the plaintiff’s
general
damages claim (or indeed the unlimited claim) against the
defendant.
[66] Accordingly this issue must also
be determined in the plaintiff’s favour.
Costs
[67] Given that the plaintiff has
succeeded on all of the separated issues, there is no reason why
costs should not follow the result.
Conclusion
[68] In the result the following order
is made:
1. It is declared that:
1.1 The signature of the discharge form
by Adv S Mouton on 7 July 1998 does not preclude the plaintiff from
succeeding in the present
action.
1.2 The absence of an affidavit
prescribed by
regulation 3
of the regulations promulgated under the
former Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 does
not debar the plaintiff
from succeeding in the present action, should
it be found that the patient has been in a persistent vegetative
state since the
date of the accident.
1.3 The fact that the current claim for
compensation was not submitted to the defendant within the time
prescribed by regulation
3(2) of the aforementioned regulations does
not debar the plaintiff from succeeding in recovering damages on the
patient’s
behalf.
1.4 The plaintiff was entitled to
institute the present unlimited claim against the defendant despite
the admission by the patient’s
mother in an affidavit dated 24
April 2003 that the claim had prescribed.
1.5 The plaintiff and / or the
patient’s mother (in her capacity as curator bonis) have not
waived or abandoned her claim
for general damages which is part of
her present unlimited claim.
2. The defendant shall pay the costs of
these proceedings, including any reserved costs orders, on the scale
as between party and
party and including the costs of two counsel
where employed.
J I CLOETE