One would be forgiven for assuming that it would be highly unlikely that a judgement written in 2015 would deal with the application of an Act repealed in 1997, some 18 years ago, yet that is precisely what happened in the matter of Jethro N.O. v Road Accident Fund (Western Cape High Court) Case No. 10534/2006 (judgement per Cloete, J handed down on 29 July 2015).
The factual matrix is (unsurprisingly) quite involved and is therefore summarised as follows:
- The Plaintiff in this action was the duly appointed Curator ad Litem (appointed on 15 June 2003) to Susanna Jacoba Agenbag, a major who suffered serious injuries as a consequence of which she has been in a persistent vegetative state, since being involved in a motor vehicle collision as a passenger on 20 February 1994;
- On 14 February 1997 Adv S Mouton was appointed as Curator ad Litem to Ms Agenbag to do the following:
- Institute action against the deceased estate of the driver of the vehicle in which she had been travelling, he having died at the scene;
- Institute action against Sentrasure, the appointed agent of the identified driver in terms of the schedule to the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 (“the MMVAF Act”);
- The former action was not pursued due to the deceased’s lack of means. In respect of the latter action, on 7 July 1998 Adv Mouton accepted R25 000 in settlement of Ms Agenbag’s claim and signed the relevant discharge form (this amount being the maximum payable for such a claim in terms of regulation 2 of the Multilateral Motor Vehicle Accidents regulations – this regulation was the precursor to the now repealed section 18(1)(b) of the Road Accident Fund Act);
- The Plaintiff was appointed on 15 June 2003 to institute a claim for R8.9 million against Schreuder Attorneys, based on their alleged professional negligence in failing to, firstly, ascertain that the collision in question had been partly caused by the negligence of the driver of another unidentified vehicle (in which event Ms Agenbag’s claim would have been unlimited) and secondly, failing to lodge the claim within the prescribed two year period, thereby permitting this claim to prescribe;
- Although the latter claim was defended, ultimately Foxcroft, J ruled in the Plaintiff’s favour on 9 June 2005, finding that Schreuders had indeed been negligent in failing to institute an unlimited claim (by way of a deed of settlement signed 29 June 2011 the Plaintiff accepted payment of R1 035 000 on Ms Agenbag’s behalf, such payment being made without admission of liability);
- On 22 February 2006 the Plaintiff’s powers were extended to include the power to institute the action which is the subject matter of the judgement under discussion, against the Defendant (as the successor to the MMVAF), for recovery of the amount of R8.9 million (payment of the unlimited claim less the R25 000 previously recovered, was claimed), which action was instituted on 28 September 2006;
- The Defendant filed a Plea & Special Plea and on 9 September 2014 the issues raised in the Special Plea were separated in terms of Rule 33(4), for adjudication first.
The issues for determination were as follows:
- Whether Mouton’s signing of the discharge form precluded the Plaintiff from succeeding in the present action;
- Whether the absence of a prescribed regulation 3(1)(a)(iii) affidavit debarred the Plaintiff from succeeding, should it be found that Ms Agenbag had been in a persistent vegetative state since the date of the collision;
- Whether the fact that the unidentified claim was not submitted to the Defendant within the two year period prescribed by regulation 3(2) debarred the Plaintiff from successfully recovering damages on Ms Agenbag’s behalf;
- Whether Ms Agenbag’s mother’s admission that the unidentified claim had prescribed, in an affidavit dated 24 April 2003, prevented the Plaintiff from instituting the action in question;
- Whether the Plaintiff and/or the mother (in her capacity as curatrix bonis) had waived or abandoned Ms Agenbag’s claim for general damages which was part of the present unlimited claim.
THE DISCHARGE FORM – THE LIMITED CLAIM
In order to determine whether Mouton’s signing of the discharge form disposed of all possible claims against the MMVAF the Court was required to interpret the order in terms whereof he had been appointed as Curator ad Litem.
After setting out the relevant principles to apply in interpreting the order, the Court had regard firstly to the founding and supporting affidavits relating to the application to appoint the Curator ad Litem and noted that nowhere was there any reference whatsoever to a possible claim on the basis of the negligence of an unidentified driver. The order subsequently granted specifically only empowered Mouton to institute the two actions referred to above and to settle ‘any such claim’. This interpretation was, so it was held, further supported by the fact that Mouton had marked ‘not applicable’ where there was a reference to any unidentified vehicle on the discharge form as well as the fact that Mouton had recorded that the claim was limited to R25 000, despite the fact that the total value of the claim was clearly greater.
The Court furthermore interpreted Mouton’s acknowledgement that he accepted the payment of R25 000 ‘ in full and final settlement of all and any claims of whatever nature, present or future‘ within the context of the strict confines of his powers as explained previously and that consequently the only claims which he was empowered to settle were the claims against the estate of the deceased driver and the identified/Sentrasure claim (further, had he purported to settle any other claim(s) he would have exceeded his limited powers in doing so).
In dealing with the Defendant’s further contention that Mouton’s signing of the discharge form constituted a compromise and that doing so had the same effect as res judicata, the Court noted that he could never have compromised a claim which he was in the first instance not empowered to advance.
The Court consequently went on to hold that Mouton’s signing of the discharge from did not preclude the Plaintiff from succeeding in the present action.
THE REGULATION 3(1)(a)(iii) AFFIDAVIT
The so-called 14 day affidavit requirement also appeared in the succeeding legislation (regulation 2(1)c)) and in addressing this issue the Plaintiff relied on the judgement of the Supreme Court of Appeal in relation to the latter regulation, inRoad Accident Fund v Thugwana 2004(3) SA 169 (SCA), where it was held that ‘ if a claimant is physically or mentally incapable of making an affidavit, it cannot be said that she is in a position to do so‘.
Notwithstanding the parties’ agreement that Ms Agenbag’s persistent vegetative state since the date of the collision meant that she clearly had been neither physically nor mentally capable of making the required affidavit, the Defendant nevertheless sought to contend that it had been incumbent on her mother (either in that capacity, alternatively as curatrix bonis) to protect her interests by submitting the required affidavit or, further, by furnishing an explanation as to what reasonable steps had been taken to identify the owner or driver of the unidentified vehicle.
In advancing it’s submissions with regard to the above the Defendant sought to rely onMbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA) and Geldenhuys & Joubert v Van Wyk & Another 2005 (2) SA 512 (SCA). The Court however correctly pointed out that the authorities in question were concerned with the validity of regulation 3(2)(a)(i) of the MMVAF Act and the corresponding provision in the subsequent RAF Act respectively, which had to do with the 2 year period prescribed for lodgement of a so-called “hit & run” (unidentified) claim and were therefore of no assistance to the Defendant.
The Court held that there was no obligation on the mother, in whichever capacity, to submit the relevant affidavit on her adult daughter’s behalf and consequently held in the Plaintiff’s favour in respect of this issue as well.
THE FAILURE TO LODGE THE CLAIM WITHIN THE PRESCRIBED 2 YEAR PERIOD (REGULATION 3(2))
In deciding in Plaintiff’s favour in respect of this issue also, the Court noted that it considered itself bound by the decision of the Supreme Court of Appeal in the matter of Moloi & Others v Road Accident Fund 2001 (3) SA 546 (SCA) (despite the fact that the Supreme Court of Appeal declined to follow this decision subsequently in the Geldenhuys & Joubert matter which dealt with the corresponding provisions of the RAF Act), which held that the regulation in question was invalid as it was contrary to s16 of the Prescription Act 68 of 1969; s16 makes the provisions of the Prescription Act applicable to all debts save where an Act of Parliament prescribes a different period – the reasoning in Moloi was ultimately that a mere regulation did not have the status of an Act of Parliament and hence cannot trump s13 of the Prescription Act which provides that prescription cannot run against a minor/insane person/person under curatorship.
Although Moloi dealt with the situation of a minor the Court held that this ratio applied equally to Ms Agenbag, who was effectively in the same position as a minor.
THE IMPACT OF THE MOTHER’S ADMISSION THAT THE UNIDENTIFIED CLAIM HAD PRESCRIBED
In this regard the Court held that in light of the decision in Moloi to which it considered itself bound, the claim had not in fact prescribed and therefore the admission made by the mother in this regard was incorrect; pointing to the fact that an incorrect concession of law made a party’s legal representative is not binding on the party concerned, it could hardly be said of an instance such as this where it was made by a person without any authority to do so.
The Court therefore held in favour of the Plaintiff in respect of this issue also.
THE QUESTION OF WAIVER OF THE GENERAL DAMAGES CLAIM
The Defendant contended that by instituting action against Schreuders Attorneys the Plaintiff and/or Ms Agenbag’s mother waived or abandoned the general damages component of the claim, in that since 2003 (when the first application relating to the appointment of the Plaintiff as Curator ad Litem was brought) the Plaintiff and/or the mother had outwardly manifested the explicit admission that the unlimited claim had prescribed.
The Court in this regard referred to the decision of the Supreme Court of Appeal in Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA) and held that it was evident that (a) the Defendant bears the onus to prove a waiver, (b) clear proof of the waiver is required and (c) conduct from which a waiver is to be inferred must be unequivocal and capable of no other interpretation.
Applying the relevant authorities to the facts of the present matter the Court held that it was not persuaded that there was clear proof of the alleged waiver, nor was there proof of any unequivocal conduct from which to draw this conclusion; in fact, the Court noted that the indications were rather to the contrary. Holding finally that one could not waive a right of which one was unaware the Court went on to find in Plaintiff’s favour in respect of the final issue as well, in doing so noting further that the Curator ad Litem’s powers had only been extended to include the power to bring the present action in relation to the pursuit of the unlimited claim at the earliest in February 2006, that the Schreuders claim was settled without admission of liability only after litis contestatio was reached in the present matter and that there was insufficient information before the Court regarding the circumstances in which this settlement was reached.
Given the recency of the judgement it is not yet clear whether the Defendant will seek leave to appeal herein – in the event that an appeal ensues this summary will be amplified.
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