You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1997 >>
[1997] BWCA 20
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
Mpelega v Botswana Motor Vehicle Insurance Fund (Civil Appeal No. 40 of 1996) [1997] BWCA 20; [1997] B.L.R. 130 (CA) (28 January 1997)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 40 OF 1996
In the matter between:
MIRIAM MPELE6A
- Appellant
and
BOTSWANA MOTOR VEHICLE INSURANCE FUND - Respondent
Mr. Attorney M.P. Phumaphi for the Appellant Mr. Attorney E. Khan for the Respondent
JUDGMENT
CORAM: Aguda, J.A.
Schreiner, J.A. Tebbutt, J.A.
Schreiner, J.A.:
The appellant came to this Court on appeal against a judgment of Cotran J. in which he upheld a special plea of prescription. By-consent
of the parties, the special plea was the subject of a preliminary hearing and decision. It was a case under the Motor Vehicle Insurance
Fund Act which I shall call "the Act". The special plea is in the following terms:
"1. The Plaintiff's claim arises out of a motor vehicle accident which occurred on 4th July 1992 and is brought against the Defendant
in terms of the Motor Vehicle Insurance Fund Act Cap. 69:02 of the Laws of Botswana. The said claim arose on the aforesaid 4th day
of July 1992.
2. The Plaintiff's Writ of Summons was served on the Defendant on 2nd November 1994 that is more than two years alternatively two
years and three months after the date on which the alleged claim arose.
3. In the premises the Plaintiff's claim is prescribed in terms of Section 15 of the
2
said Motor Vehicle Insurance Fund Act WHEREFORE the Defendant prays that the Plaintiff's claim be dismissed with costs."
The Defendant in its replication admits the allegations in
paragraph 1 above but, in reply to paragraph 2, says that service
of the summons occurred on the 12th August 1994 and attaches an
affidavit from Mr. Phumaphi in which he states that he served the
summons upon a Mrs. Dilawe, an employee of the Defendant, in
terms of Order 5 Rule 3 on the 12th August 1994. In the
alternative it is alleged:
"(a) The claim contemplated by section 16 was served on the Defendant on the 16th July 1994.
(b)
Defendant did not within 2 months as
contemplated by Section 15(3) communicate to
the Plaintiff any objection to the validity
of the claim.
(c)
In terms of Section 15(1) as read with
Section 15(3) the prescriptive period was
extended by a total of six months with the
result that the claim was to prescribe on
the 15th November 1994."
In the further alternative it is alleged that the Defendant impliedly waived its right to raise the defence of prescription by reason
of a certain letter written on the 14th October, 1994. It would seem that by the time Cotran, J., came to give his judgment it had
been agreed that the prescription issue between the parties was the meaning of Section 15 of the Act and its application to the facts
of the case.
Mr. Khan on behalf of the Appellant raised a large number of objections to the notice of appeal and appeal procedure of the Appellant.
However he conceded that it was within the power of
3 this Court to condone any irregularities and deficiencies. The Court then, acting within its power, condoned the irregularities
and deficiencies. Its reasons for doing so were that the ambit of the appeal was very narrow so that there was no prejudice either
to the Court or the Respondent caused by any irregularity or deficiency there might be and the plaintiff was a person who was badly
injured and should not be delayed or prejudiced by deficiencies in the procedures adopted by her attorney. Condonation in the present
case was granted in the peculiar circumstances and it should not be assumed that in the future the Appeal Court will overlook slack
practice or non-observance of the rules. I am not passing judgment on the validity of objections taken on behalf of the Respondent so that the grant of a blanket condonation should not be taken as any
finding on the validity or invalidity of any of the preliminary objection taken on behalf of the Respondent.
I set out the relevant parts of Sections 15 (1) and (3) and
Section 16 of the Act which determine ultimately the period
allowed for the doing of certain things leading up to the summons
in an action under the Act.
"15 (1)
the right to claim compensation
under section 10 from an appointed
agent
shall become prescribed upon the
expiration of a period of two years from the date upon which the claim arose.
Provided that prescription shall be
suspended during the period of three months
referred to in subsection (3) of this
section and section 16 (2) (a)
(3) If an appointed agent does not within two months after receipt of a claim as set out in Section 16 (1) object to the validity
4
thereof, prescription shall be further
suspended until after the expiration of a
further period of three months from the date
which the appointed agent by registered
post
(a)
repudiates liability; or
(b)
conveys an offer of settlement of the claim to the claimant or his representative.
16 (2) (a) No claim shall be enforceable by legal proceedings commenced by a summons served on the appointed agent -
(a)
before the expiration of a period of
three months as from the date on which the
claim was sent or delivered by hand as the
case may be to the appointed agent as
provided for in sub-section 1.
(b)
before all the prescription
requirements of the appointed agent have
been complied with.
Provided that if the appointed agent repudiates in writing liability for the claim before the expiration of the said period, the claim
may at any time after such repudiation serve summons on the appointed agent."
No doubt it is desirable that legislation should, as far as possible, encourage parties to third party motor vehicle insurance disputes
to reach a negotiating position before the issue of a writ of summons with the consequent legal costs. These costs become a major
feature in any settlement discussions which take place thereafter. But the provisions of the present legislation have, in the pursuit
of this worthy object, become far too complicated and obscure. There has been strong criticism of the form and draftsmanship of similar
legislation in South Africa. This Court associates itself with this criticism. It should not be beyond the skill of a draughtsman
to express
5 clearly the contents of Sections 15 (1) and (3) Section 16 (1) and (2) .
I proceed now to attempt to disentangle the procedure envisaged by the legislation. Instead of issuing a writ of summons immediately
after a case has been investigated by an injured person or his attorney, it is necessary that a claim complying with Section 16 (1)
should be sent by registered post or delivered by hand of the registered office or local branch office of the appointed agent of
the fund. The claim must include certain information detailed in Section 16 (1) which is designed to inform the appointed agent of
the case made against it. It is a preliminary step before any claim becomes enforceable by legal proceedings and is designed to enable
the appointed agent to be able to assess the strength of the case of the claimant and the likely amount of any award which may be
made against it.
The proviso to Section 15 (1) states that prescription shall be suspended during the period of three months referred to in subsection
(3) of section 15 and section 16 (2) (a).
Section 15 (3) deals with what is required of the appointed agent in the interests of a possible settlement of any dispute before
the issue of a writ of summons. The first thing which he might do is consider whether the claim is valid against the background of
section 16. If the appointed agent believes that the claim is invalid he may object to it within two months after receipt of it.
It is not necessary to discuss the meaning of "invalid"
6 in the present context because the parties were ad idem that it was indeed invalid.
If as happened in the present case, the appointed agent does not contest the validity of the claim, prescription is suspended, apparently
indefinitely. The agent can then cause it to commence again by repudiating liability or making an offer of settlement. The claimant
then has three months to accept or reject the offer. It is only after such period of three months from the repudiation or offer of
settlement that the claimant can institute action by way of summons.
The cause of action in the present case arose on the 4th July 1992 when the accident occurred. A claim form which was defective in
terms of the Rules in a number of respects was submitted to the appointed agent on the 16th June 1994 eighteen days before the expiry
of the two year period of prescription laid down in Section 15 (1) . The appointed agent, on the 8th July 1994, wrote a letter acknowledging
receipt of the claim form and alleging that the claim was defective in a number of respects. This letter was addressed to the wrong
post office box number and it must be assumed that it did not reach the claimant until it learned of its contents on 18th October 1996. In these circumstances the Court must ignore
the letter of the 8th July 1994 and decide the case as if it had never been sent. There was thus no objection to the validity of
the claim as contemplated by Section 15 and prescription was therefore "further suspended" in terms of Section 15 (3) .
There has been no written
repudiation of the claim or offer of settlement and thus prescription continues to be suspended. Summons was issued on the 12th August
1994.
It follows that the claim is not prescribed because prescription has been suspended due to the failure to object to the claim and,
having done so, to put an end to the suspension of the running of prescription. The Court a quo should have dismissed the special plea.
The appeal succeeds and the special plea is dismissed. The order as to costs in the High Court is set aside. In the High Court it
is ordered that the costs should be costs in the cause. In this Court the Appellant is entitled to her costs.
Delivered in open court this 28th day of January, 1997
W.H.R. SCHREINER JUDGE OF APPEAL
I agree.
T.A. AGUDA JUDGE OF APPEAL
I agree.
P.H. TEBBUTT JUDGE OF APPEAL
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1997/20.html
