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Nonxago v Multilateral Motor Vehicle Accidents Fund (ECJ 045/2005) [2005] ZAECHC 22; [2005] 4 All SA 567 (SE) (30 May 2005)

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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT


ECJ NO : 045/2005


PARTIES: SELBY SONWABILE NONXAGO Plaintiff

and

THE MULTILATERAL MOTOR VEHICLE

ACCIDENTS FUND Defendant



REFERENCE NUMBERS -

  • Registrar: 2733/96


DATE HEARD: 9 June 2004; 6 April 2005


DATE DELIVERED: 30 May 2005


JUDGE(S): Kroon J


LEGAL REPRESENTATIVES -

Appearances:

  • for the State/Applicant(s)/Appellant(s): NJ Mullins

  • for the accused/respondent(s): P Scott



Instructing attorneys:

  • Applicant(s)/Appellant(s): Burmeister De Lange Inc

  • Respondent(s): Bellairs and Solomon












REPORTABLE


IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

CASE NO: 2733/96

IN THE MATTER BETWEEN:


SELBY SONWABILE NONXAGO Plaintiff


and


THE MULTILATERAL MOTOR VEHICLE

ACCIDENTS FUND Defendant


________________________________________________________________________


JUDGMENT


SUMMARY: Action for damages for bodily injuries sustained in motor accident – article 48 (f) (i) of Schedule to Act 93 of 1989 providing that MMF not obliged to compensate any person for any loss or damage if claimant refuses or fails to submit to the MMF, together with his claim form, or within a reasonable period thereafter, and if he is in a position to do so, an affidavit in which the particulars of the accident giving rise to his claim are fully set out – submission of affidavit containing averments wittingly false in material respects – plaintiff non-suited.



KROON J:


[1] This is an action for the recovery of damages arising out of a motor accident. The action was instituted in terms of the provisions of Act 93 of 1989 (“the Act”) against the Multilateral Motor Vehicle Accidents Fund (“the MMF”). In an earlier interlocutory application it was recorded that the Road Accident Fund had become the legal successor to the MMF. For convenience, I will in this judgment simply refer to the defendant.


[2] The issues in this matter were separated and I was seized only with the issue of the defendant’s liability to the plaintiff.


[3] In its plea the defendant:

(a) admitted the plaintiff’s allegation that the vehicle in question collided with him, a pedestrian, in Njoli Road, Kwazkhele, Port Elizabeth on 5 March 1994;

(b) denied the plaintiff’s allegation that the collision was due to the negligence of the driver of the vehicle, one Jordaan, and pleaded that the collision was due solely to the negligence of the plaintiff himself, particulars of which were detailed in the plea;

(c) admitted, in paragraph 10 of the plea, the plaintiff’s allegation that the provisions of article 62 of the Schedule to the Act had been complied with;

(d) denied, in paragraph 11 of the plea, that it was liable to compensate the plaintiff (which denial flowed from the defendant’s averments on the issue of negligence).


[4] (a) While the plaintiff was under cross-examination Mr Scott, for the defendant, applied from the Bar for an amendment to paragraph 10 of the plea to replace the admission that the plaintiff had complied with the provisions of article 62 with a denial that there had been such compliance. Mr Mullins, for the plaintiff, relying, inter alia, on the circumstance that the withdrawal of an admission was being sought, required that a substantive application for leave to amend, supported on affidavit, be filed. I ruled accordingly.

(b) The substantive application that ensued, however, pursued a different amendment, viz., the renumbering of paragraph 11 as 11.1 and the addition of the following subparagraph, to be numbered 11.2:

Alternatively, and in any event, the Defendant is not obliged to compensate the plaintiff for any loss or damage by virtue of the plaintiff’s failure to comply with the provisions of article 48 (f) of the Schedule to Act 93 of 1989, in that the plaintiff has failed to submit to the Defendant an affidavit in which the particulars of the accident that gave rise to this claim are fully set out.


The application was opposed. After hearing argument I granted the application and intimated that my reasons for that decision would be furnished later. The reasons now follow:


[5] The following principles applicable to the question whether an amendment which is opposed should be granted may be recorded. The Court has the greatest latitude in granting amendments and it is very necessary that that be so. The object of the Court is to do justice between the parties. Court proceedings are not a game in which, if some mistake is made, the forfeit is claimed. Subject to what follows, the general approach of the Court is to grant the amendment in order to promote the proper ventilation of the dispute between the parties and to have the true issues between them the subject of decision. An amendment is, however, not be had merely for the asking; some explanation therefor must be offered. The explanation offered must demonstrate the bona fides of the applicant. The applicant must show that prima facie the amendment sought discloses “something deserving of consideration, a triable issue”. The amendment must not cause prejudice to the other side which cannot be met by a postponement and/or an order for costs. See, e.g., Whittaker v Roos and Another; Morant v Roos and Another 1911 TPD 1092 at 1102; Bellairs v Hodnett and Another 1978 (1) SA 1109 (A) at 1150F-G; Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (Tk) at 77F-I.


[6] Article 48 (f) (i) provided as follows:

The MMF or an appointed agent, as the case may be, shall not be obliged to compensate any person in terms of Chapter XII for any loss or damage –

...............

(f) if the claimant refuses or fails –

(i) to submit to the MMF, or the appointed agent, together with his claim form, as prescribed by the Board, or within a reasonable period thereafter and if he is in a position to do so, an affidavit in which particulars of the accident that gave rise to the claim are fully set out;

..................


[7] What prompted the application for leave to amend was:

(a) a comparison between the details of the version as to how the collision occurred as deposed to by the plaintiff during the course of his evidence and the contents of a document in the form of an affidavit by him which, together with the plaintiff’s claim form, was sent by his then attorneys to the defendant under cover of a letter dated 29 November 1995;

(b) the plaintiff’s evidence as to how he came to sign the said document.


[8] The document, handed in as exh B, read as follows:

AFFIDAVIT
I, the undersigned:

SELBY SONWABILE NONXAGO

do hereby state under oath:


1. I am a minor male born on 8 January 1975 presently residing at 7 Dada Street, Motherwell, Port Elizabeth.

2. On the 5th March 1994 at approximately 18h00 I was walking along Njoli Road, Kwazakhele with my friend Clifford.

3. We decided to cross the road and whilst I was standing on the pavement I looked to my right and my left to ensure that it was safe to cross.

4. When I began crossing the road I noticed a vehicle coming from my right hand side. There was plenty of time to cross over before this vehicle reached me.

5. As I approached the middle line I looked to my left to ensure that the road was still clear.

6. Whilst I was crossing the far lane and after I had already crossed over the middle line a vehicle collided with me from my right hand side.

7. As a result of the collision I was injured.

(Signed)

____________________________

SELBY SONWABILE NONXAGO

Sworn to before me and signed in my presence at PORT ELIZABETH on the 10th day of July 1995 the Deponent having declared that he knew and understood the contents of this Affidavit and that he considered the prescribed oath to be binding on his conscience and that all the Regulations contained in the Government Notice R1258 dated 21 July 1972 (as amended) have been complied with.

(Signed)

_________________________

COMMISSIONER OF OATHS

I, VAUGHAN DESMOND ABERNETHY, OF 10 RINK STREET, PORT ELIZABETH

COMMISSIONER OF OATHS in my capacity as Manager of First National Bank of South Africa Limited

PORT ELIZABETH, RINK STREET

BRANCH.

[9] The affidavit filed in support of the application for leave to amend, deposed to by Mr Solomons, the defendant’s attorney, also recorded that he was instructed that a further document enclosed under cover of the letter by the plaintiff’s then attorneys was in the form of an affidavit by one Madoda Clifford Matikinca. It read as follows:

1. I am an adult male residing at 4908 Site and Service, Kwazakele, Port Elizabeth.

2. On the 5 March 1994 at approximately 18:00 I accompanied my friend Selby Nonxago as we were walking along Njoli Road, Kwazakele.

3. We stopped to talk to a friend of ours and then we walked to Njoli Road to cross over.

4. Selby was in front of me and after looking to his right he started to cross the road. I noticed that a motor vehicle was approaching from his right hand side.

5. As he cross over the centre line an ambulance came at high speed without its siren warning or lights flashing, overtook the vehicle that was moving towards Selby and collided with him on its incorrect side of the road.

6. As a result of the collision Selby was injured.


This document reflected that it was commissioned as an affidavit on 1 August 1994 by a practising attorney. It became exh C at the hearing.


[10] The plaintiff’s evidence prior to the application for leave to amend had proceeded as follows:

(a) In examination in chief he said that after watching a soccer match he walked to Njoli Road. He was unable to recall when the soccer finished, but it was already dark when he reached Njoli Road. Initially, a friend (not Clifford) was with him, but he left the friend behind talking to some other people. When he was about to cross the street he looked and observed one vehicle coming from the direction of New Brighton, i.e., from his left hand side. He remembered that he crossed to the centre line where he stopped and waited for this vehicle to pass. His next memory was of his regaining consciousness in hospital. Inter alia, he sustained a head injury which rendered him very forgetful and caused him to take a long time before registering what was being said to him. He did not remember making a statement at his attorney’s office, but he confirmed that exh B was read to him at that office and that he signed it. The contents of the document were incorrect in a number of respects:

(1) His date of birth was not 8 January 1975, but 1 August 1975;

(2) The word “We” in the phrase “We decided to cross the road...” was incorrect; he was alone at that stage; he had not at any stage walked with Clifford;

(3) There was no vehicle coming from his right hand side;

(4) While it was correct that he looked to his left as he approached the “middle” line to ensure that the road was clear, he did not cross the centre line but stood on that line and waited for the vehicle approaching from the left to pass;

(5) The inference from exh B that a vehicle coming from his right hand side drove onto its incorrect side of the road to collide with him, was without foundation.


(b) In answer to questions by me he stated that in 1995 his English was not good; no interpreter assisted him when he visited his attorney’s office.

(c) Under cross-examination he stated that he had no idea at what time the accident happened, and he could not confirm the time of 18h00 recorded in exh B. Initially, he intimated that he would not be able to dispute a time of 9:20 were that to be the testimony of the driver of the vehicle, but later said that it could not have been that late. He confirmed that it was his signature on exh B, but added that he was required to sign many documents on his visits to his attorney. He advised his attorney that the contents of exh B were wrong. He told his attorney that he was alone when the accident happened. On its being said that he was with Clifford and his being furnished with Clifford’s Xhosa names he told his attorney that he never walked with Clifford. The attorney’s response was that because he did not know what happened, he was “automatically” walking with Clifford. When he insisted that that was wrong, he was told that he was not in a position to know what was wrong.


[11] It follows from the above resumé of the plaintiff’s evidence that the affidavit of Clifford, exh C, also contained averments that, on the plaintiff’s case, were incorrect.


[12] It may be recorded that it became common cause at the trial that Njoli Road runs approximately from north to south and that New Brighton was to the south of the scene of the collision. Accordingly, on the plaintiff’s evidence he crossed Njoli Road from east to west and the vehicle he referred to approached him from the south. However, having regard solely to what was recorded in exh B it was not possible to say in which direction the plaintiff crossed the road or in which direction the vehicle that struck him was travelling. In further particulars for purposes of trial, however, the plaintiff stated that the vehicle was travelling from south to north – he was not asked to state in which direction he moved across the road. The defence version, as it was put to the plaintiff during cross-examination, agreed that the vehicle, which was an ambulance, was travelling from south to north. Marrying that version, read with the plaintiff’s averment in his further particulars for trial, with the version set out in exh B would have meant that the plaintiff crossed the street from west to east and not from east to west as he testified.


[13] Mr Solomons’s affidavit reflected that when he received instructions to draft the defendant’s plea, for which purpose he was favoured, inter alia, with the covering letter from the plaintiff’s erstwhile attorneys enclosing, inter alia, the plaintiff’s claim form and exhibits B and C, he had no reason to suspect that anything was amiss with the contents of the exhibits or that the plaintiff had not duly complied with the provisions of article 48 (f) (i); hence, the plea did not include an averment of non-compliance with the provisions of the article. It was only when the plaintiff testified that it became apparent that exh B contained false information, i.e., to the knowledge of the plaintiff it contained averments that were incorrect. His essential submission was that in the circumstances the defendant was armed with an argument that there had not been compliance with the provisions of the article, on the basis that the plaintiff had failed to submit an affidavit fully setting out the particulars of the accident giving rise to his claim. The issue could only have been raised once the plaintiff’s evidence was heard. It was submitted that there would be no prejudice to the plaintiff in the conduct of his case should the desired amendment be granted.


[14] Two answering affidavits were filed. Mr Williams, the plaintiff’s attorney, recorded that on receiving instructions in the matter he contacted the plaintiff’s erstwhile attorneys. In the result, he was advised that a Mr Liesching had prepared exhibits B and C. (It may be recorded that Mr Liesching was the author of the letter under cover of which the plaintiff’s claim form and the exhibits were submitted to the defendant). Mr Liesching’s affidavit recorded that the exhibits had been placed before him as he had “apparently” drafted same, but that due to the time that had elapsed in the interim, he had no recollection of having done so. Mr Williams pointed out that it was a fact that affidavits had been submitted and it was his submission that the defendant’s contention that because certain allegations in the plaintiff’s affidavit and that of a witness were incorrect, therefore there had not been compliance with the provisions of article 48 (f) (i), was untenable. The very purpose of the trial was to resolve any dispute as to how the collision occurred. It was his further averment that the defendant had repudiated the plaintiff’s claim on the basis that the version set out in the affidavits was rejected. He further pointed out that the affidavit of Mr Solomons did not suggest that the matter would have been handled differently had there not been discrepancies between the contents of the affidavits and the plaintiff’s evidence. Reliance was further placed on the fact that the affidavits recorded the date and place of the accident and that it occurred while the plaintiff was crossing the road, and that it was common cause on the pleadings that the collision between the vehicle in question and the plaintiff did occur at that time and place.


[15] In my judgment:

(a) there was no delay in seeking the amendment; there was a ready and acceptable explanation why it was only sought at the time application therefor was made;

(b) that circumstance, read with the comments in (c) below, demonstrated the defendant’s bona fides in seeking the amendment;

(c) the amendment raised a triable issue, as will be shown in the discussion that follows later in this judgment;

(d) the amendment would not occasion the plaintiff prejudice in the conduct of his case, and none was suggested.


[16] In the result, considerations relating to the ventilation of a true dispute between the parties and the interests of justice dictated that the leave to amend applied for, be granted.


[17] On the question of costs the issues concerned the costs of an unopposed application to amend and the costs occasioned by the opposition thereto.

(a) There is authority to the effect that a party wishing to amend pleadings seeks an indulgence. I am not convinced that that view is necessarily correct, and it is clear that in casu the defendant was not seeking to correct any earlier mistake or omission on its part. The necessity for the amendment only arose by reason of the content of the plaintiff’s testimony. In the circumstances, I am persuaded that, as Mr Scott submitted, the costs of an unopposed application should be ordered to be costs in the cause.

(b) As to the costs occasioned by the opposition to the application it seems to me that had the plaintiff, as he was obliged to do, taken proper stock of the position after having sight of the application papers, he should have realised that the application ought not to have been opposed. It is so that there is a line of authorities to the effect that where the opposition, though unsuccessful, was reasonable, that fact is sufficient for the opposer to be awarded costs. On the other hand there are other authorities to the effect that unsuccessful opposition, albeit reasonable, attracts application of the general rule that costs follow the event. In the light of the factors set out earlier I am satisfied that the opposition was both unjustified and unreasonable. The costs occasioned thereby must accordingly be for the account of the plaintiff.


[18] After the grant of the amendment the plaintiff’s further testimony proceeded as follows. He was told by attorney de Villiers to sign exh B. (Possibly he was confusing Mr de Villiers with Mr Liesching in that he later stated that sometimes Mr de Villiers was present when he visited the attorneys’ offices, but afterwards he was referred to someone else in the same firm; he in fact stated that he thought that Liesching was the other name of Mr de Villiers). He signed various documents at the offices on different days. While he initially stated that all documents he was required to sign in respect of the matter were signed at the offices of the attorneys, and specifically exh B, he added that he could not remember who was present, specifically if a Mr Abernethy was present, or if he was asked to swear that the contents of exh B were true and correct or if he signed any document at a place other than his attorney’s offices, specifically a bank. He remembered reading exh B and that he pointed out to his attorney (he could not remember who, but thought that it may have been Mr de Villiers) the various errors in the document. His attorney said, however, that he might have forgotten some of the facts because he was in hospital a long time, and that he, the attorney, would make enquiries from the persons who saw the accident. He affirmed that it was his version that there was no traffic approaching from his right hand side, that there was one vehicle approaching from his left hand side and that he went to stand on the centre line to wait for it to pass, that he did not believe that vehicle was the one that struck him as it was already close to him, but the vehicle that struck him must have come from his left hand side as there was no traffic coming from his right hand side, and that while it was already dark he could not say what time it was and he repeated an earlier concession that he could not dispute the driver’s version that the collision occurred after 9 o’clock.


[19] A further witness, Mrs Zenzile, was called to testify on the plaintiff’s behalf. She stated that she was standing outside her gate talking to Clifford, who had been with her for some 30 to 40 minutes. She observed the plaintiff crossing the street and stopping to stand at the centre line. It was between 7 and 8 p.m. An ambulance, approaching from the south, overtook another vehicle and collided with the plaintiff. She did not remember any flashing lights or hearing a siren. She “assumed’, from the fact that the windscreen of the ambulance was smashed, that it travelled at a high speed. There was traffic travelling along Njoli Road in both directions.


[20] After the examination in chief of Mrs Zenzile was completed I was advised that the parties had reached agreement that my decision on the merits of the matter was to be based on an acceptance of the version of Jordaan as it was put to the plaintiff during cross-examination. It was as follows. He was called out on an emergency; he drove along Njoli Road in a northerly direction at a speed of 90 k.p.h; his emergency lights were flashing and his siren was blaring; a Kombi motor vehicle travelling ahead of him drove onto the verge to allow him to pass; there were vehicles approaching from the opposite direction; when the Kombi moved out of the way he observed the plaintiff standing in the left hand lane ahead of him (where precisely was not specified) with his hands on his hips and looking in his direction; he applied brakes which caused his vehicle to move to the right with the result that his right hand wheels might have gone over the centre line; at the same time the plaintiff also moved in that direction; the centre of the front of his vehicle struck the plaintiff; he attended to the plaintiff and smelt alcohol on his breath.


[21] Touyz v Greater Johannesburg Transitional Metropolitan Council [1995] ZASCA 161; 1996 (1) SA 950 (A) was a matter involving a claim under the Act and in which the defendant had raised a special plea that it was not obliged to compensate the plaintiff by reason of the latter’s failure to comply with article 48 (f) (ii) of the Schedule to the Act and supply the plaintiff within a reasonable period with certain statements relating to the accident in question. At 957B, 957I, 958F-G and 958I - 959A the Court adopted the meaning ascribed to the word “fails” in Fantiso (referred to in para [22] below). At 959C-D it was affirmed that the onus was on the defendant to prove that by reason of non-compliance with article 48 (f) (ii) the plaintiff’s claim against it had terminated.


[22] (a) In Union and South-West Africa Insurance Co Ltd v Fantiso 1981 (3) SA 293 (A) it was again affirmed that the general object of the then applicable Act (Act 56 of 1972) was to afford third parties the widest possible protection against loss sustained by them as a result of the negligent or unlawful driving of motor vehicles.

(b) The case concerned an application of the provisions of s 23 (c) (ii) of Act 56 of 1972 which read as follows:

An authorised insurer shall not be obliged to compensate any person in terms of s 21 for any loss or damage

.............

(c) suffered as a result of bodily injury to any person

.............

(ii) who refuses or fails to furnish the authorised insurer at his request and cost with copies of all medical reports in his possession relating to the relevant claim for compensation.”


(c) At 301A et seq. it was held that because of the severity of the penalty for non-compliance provided for in the subsection, a restrictive interpretation thereof was dictated and a consideration of elasticity and reasonableness in its application was called for; the word “fails” implied that there must have been something more than a mere omission to furnish copies of reports, otherwise injustice would result; the word implied some element of negligence, a deliberate ignoring of a request for the copies and the authorised insurer must have been obstructed from getting the information to which it was entitled.

(d) At 301G it was noted that on the facts the failure to furnish a particular medical report (until a late stage) had not occasioned the authorised insurer any prejudice and it was held that the failure in question might have been due to mere inadvertence. The plea of non-compliance with the section was accordingly dismissed.


[23] (a) In SA Eagle Insurance Co Ltd v Pretorius [1997] ZASCA 107; 1998 (2) SA 656 (A) the issue was whether there had been compliance with articles 62 (a) (i) and 62 (d) (i) of the Schedule to the Act. The former provided that a claim for compensation and the accompanying medical report shall be set out in the prescribed form “which shall be completed in all its particulars”. The latter provided that any form not so completed “shall not be acceptable” as a claim.

(b) The claim form submitted had omitted the answers to questions in the form requiring the names and addresses of the owner and driver of the other vehicle involved in the collision which gave rise to the plaintiff’s claim.

(c) At 663A it was affirmed, in accordance with a long line of previous decisions, that (1) the submission of a claim form was a peremptory requirement; (2) the prescribed requirements in regard to completion of the form were directory; and (3) what was required was substantial compliance with such requirements.

(d) At 663D-I the following passage appears:

It also appears from the authorities to which I have referred that the test for substantial compliance is an objective one (AA Mutual Insurance Association Ltd v Gcanga (supra at 865H)). Broadly speaking, the question must be posed whether sufficient particularity has been furnished to enable a reasonable insurer to consider its position in relation to the claim before it becomes involved in litigation, and to enable it to investigate the claim, if necessary. Differently put, would a reasonable insurer have been prevented by any omission or inaccuracy in the claim form from properly investigating the claim and determining its attitude towards it?

In the recent case of Multilateral Motor Vehicle Accidents Fund v Radebe [1995] ZASCA 80; 1996 (2) SA 145 (A) at 152E-I, Nestadt JA said:

‘It is true that the object of the Act is to give the widest possible protection to third parties. On the other hand the benefit which the claim form is designed to give the fund must be borne in mind and given effect to. The information contained in the claim form allows for an assessment of its liability, including the possible early investigation of the case. In addition, it also promotes the saving of the costs of litigation... These various advantages are important and should not be whittled away. The resources, both in respect of money and manpower, of agents and particularly of the fund are obviously not unlimited. They are not to be expected to investigate claims which are inadequately advanced. There is no warrant for casting on them the additional burden of doing what the regulations require should be done by the claimant. There can be no (substantial) compliance where the claimant has merely indicated to the fund how it, through its own efforts, can obtain the necessary information or documents.’

While these remarks are, generally speaking, also apposite to a matter such as the present, they were made with specific reference to whether there had been substantial compliance with reg 9 (1) (b) (ii) of the regulations made in terms of s 17 of the Motor Vehicle Accidents Act 74 of 1986. They must be viewed in that context.


(e) In the result, it was held that the information that was supplied in the claim form had reasonably enabled the defendant to make successful enquiries as to the identity of the owner or driver; it had reasonably afforded the defendant a proper opportunity to consider its position in relation to the claim and to carry out such investigation as it deemed necessary or appropriate; the defendant had thus effectively received the benefit the claim form was designed to give it. The issue was accordingly resolved in favour of the plaintiff.


[24] (a) Moskovitz v Commercial Union Ins. Co. of SA Ltd 1992 (4) SA 192 (W) concerned a claim brought under Act 84 of 1986, the precursor of the Act.

(b) S 15 of the earlier act provided that a claim for compensation under s 8 shall be set out in the prescribed manner on the prescribed form. Regulation 7 (2) (b) (i) of the regulations made in terms of the 1986 Act provided as follows:

An appointed agent shall not be obliged to compensate –

...........

(b) any person in terms of s 8 of the Act for any loss or damage if the claimant concerned refuses or fails

(i) to submit to the appointed agent, together with his MV3 form or within 14 days after being in a position to do so, an affidavit in which particulars of the occurrence that gave rise to the claim concerned are fully set out.

.............

(c) In purported compliance with the regulation, what on the face of it was an affidavit by the plaintiff was submitted to the defendant.

(d) Prior to the hearing the plaintiff’s counsel advised the defendant’s attorney that the document was in fact not an affidavit. This was confirmed by the evidence of the plaintiff who testified as follows: He was called in by his attorney and he signed the purported affidavit without reading it; he did not take an oath or affirm the contents; nor did he acknowledge the correctness thereof; he signed the document in his attorney’s office, did not appear before a commissioner of oaths and the commissioner reflected on the document was unknown to him; he did not intend the purported affidavit to be an affidavit; an averment in the document that a motor vehicle travelled towards him, moved onto its incorrect side of the road and there collided with his vehicle, was factually wrong; he had no recall of the collision at all and could not have conveyed the said averment to his attorney; he could only imagine that his attorney had made an error; he did not know of anyone who could have so advised the attorney; his case was not and had never been that the insured driver drove onto the incorrect side of the road.

(e) The defendant’s attorney testified that when he received instructions in the matter the purported affidavit was placed before him by the defendant. He accepted that it was an affidavit and instructed counsel to plead an admission that there had been compliance with the relevant procedural requirements; the later information received from plaintiff’s counsel had necessitated an amendment to the plea in which non-compliance with the requirements was alleged.

(f) Burman AJ noted, at 197J – 198A, that the real intention of ss 8 and 15 (including the regulations) and their scope and object were that the authorised agent be supplied with certain information and also that third parties be afforded the widest possible protection. He held that that intention would not be served if all the provisions in question were to be interpreted as being peremptory. After reference to a number of authorities the effect of which was in accordance with what was affirmed in Pretorius, as set out in para [23] (c) above, and noting that s 23 (c) of the 1972 Act (as to which, see para [22] above) was in part the forerunner of reg 7 (2), which was also procedural, the learned judge equated the requirement in reg 7 (2) (b) (i) of the submission of an affidavit with the requirements as to what the contents of a claim form should be (see para [22] above) in the sense that the requirement was directory and only substantial compliance therewith was required; as the learned judge put it, the affidavit, like a medical report, was part of the MV3 form; hence, so the reasoning continued, only substantial compliance with the requirement in reg 7 (2) (b) (i) that an affidavit as referred to therein be submitted, was necessary.

(g) At 198I to 199E the following was said:


There are good reasons why the Legislature has provided that the information be furnished by affidavit. Whilst the general object of s 15 of the 1986 Act is to give third parties the widest protection, it was enacted mainly for the benefit of the MVA Fund and appointed agents (Nkisimane’s case supra at 434F). The purpose of the section is to ensure that before being sued an appointed agent will be informed of sufficient particulars about the claim and will be able to settle or comprise (sic) it before costs of litigation are incurred. (Nkisimane’s case supra at 434F-G and 435H; Guardian National Insurance Co Ltd v Van der Westhuizen (supra at 214D).) The purpose is also to enable the appointed agent to enquire into the claim and to invite, guide and facilitate such investigation. (Nohamba’s case supra at 39G; Gcanga’s case supra at 865D.)

An affidavit is a solemn document and ensures that its contents have a degree of accuracy and can be relied upon. By this new provision the Legislature intended that these objects and purposes be given a dimension of certainty. The requirement to furnish a statement on oath must be seen in this light. It is noticeable that an affidavit and not a statement is required.

The present case is an example of the dangers that may arise if an affidavit is not furnished or an affidavit is furnished that is false. The purported affidavit reads on the face of it as being the direct evidence of the plaintiff. It states that the collision occurred when a vehicle travelling in the opposite direction to the plaintiff’s vehicle moved on to its incorrect side of the road and collided with the plaintiff’s vehicle. This statement is false, there never has been any such evidence available and the defendant would have wasted valuable time and effort in vain attempting to confirm or to meet it. The defendant may also on the strength of that false statement have paid the plaintiff.


(h) The conclusion arrived at by the learned judge, at 199H, was that the purported affidavit furnished by the plaintiff to the defendant was not an affidavit and was not in substantial compliance with the requirement of reg 7 (2) (b) (i) that an affidavit be furnished; a total failure to comply can never amount to or be considered to be substantial compliance. After a reference to Fantiso, the comment was made, at 200C, that the plaintiff had wilfully withheld an affidavit, or had at least deliberately ignored the requirement to furnish one and had obstructed the insurer from getting the information it was entitled to; or at least his attorney, who acted as his authorised agent, had done so. The plaintiff was accordingly non-suited.

(i) The further comment made by the learned judge, at 200G, was that reg 7 (2) (b) (i) did not require that the affidavit be made by the claimant, who may not know the required particulars. (Accordingly, so it is to be implied, the affidavit could have been that of someone else).


[25] (a) Save as is set out below, I am in respectful agreement with the comments and approach of Burman AJ in Moskovitz.

(b) With respect, however, I am constrained to differ from his conclusion that the requirement in reg 7 (2) (b) (i) that an affidavit be furnished was directory only. The learned judge appears to have erred in holding that the affidavit, like a medical report, was part of the MV3 form. Reg 7 (2) (b) (i), on a proper interpretation thereof, required something that was not part of the MV3 form, but was dehors it and in addition thereto. The same applies to the affidavit which in casu was required by article 48 (f) (i). The correct interpretation in my judgment is that like the submission of a claim form the submission of the affidavit required by the article was (subject to the qualification that the claimant be in a position to submit one) a peremptory requirement; as to what was to be contained in the affidavit the prescription in the article was directory and substantial compliance therewith would be sufficient.


[26] A further dictum with which I respectfully align myself is that of Marais JA in Pretorius at 665 which, although contained in a minority judgment, is not inconsistent with the majority judgment, viz., that a claimant does not have to guarantee the accuracy or correctness of the information furnished by him; it is sufficient if the information is given in good faith, and if it proves to be wrong, so be it.


[27] Mr Scott’s first submission was that on the evidence of the plaintiff the defendant had discharged the onus of establishing that exh B, although it purported to be an affidavit by the plaintiff, was in fact not an affidavit in that it had not properly been commissioned by a commissioner of oaths. Counsel relied on the evidence of the plaintiff at one stage that all the documents be signed in connection with this matter were signed at the offices of his attorney and his later evidence that he could not recall, and therefore could not confirm, that he appeared before Mr Abernethy in his capacity as commissioner of oaths or that the document was properly commissioned as an affidavit. In addition, counsel sought to emphasise that on the plaintiff’s own showing the contents of the document were false in a number of material respects, and it was submitted that it was therefore improbable that he would have acknowledged the correctness of the contents. I am unable to uphold the submission. Regard must be had to the fact that a period of 10 years has elapsed since the relevant events took place and to the plaintiff’s compromised powers of memory consequent upon the head injury sustained by him in the collision. Ex facie the document it is a properly commissioned affidavit. The omnia praesumuntur rite esse acta maxim is applicable (Ladybrand Hotels (Pty) Ltd v Stellenbosch Farmers’ Winery Ltd, 1974 (1) SA 490 (O) at 493C). The features invoked by counsel are insufficient to rebut the presumption embodied in the maxim and do not constitute a discharge of the onus resting on the defendant to prove that the document is not an affidavit.


[28] Counsel were agreed, and in my judgment correctly so, that compliance with article 48 (f) (i) would not have been constituted by an affidavit which went no further than to set out the date and place of the accident with particulars of the vehicle or vehicles involved. Provision for such information to be furnished was already made in the claim form that required to be submitted. What was in fact required was a version of how the collision occurred.


[29] One submission by Mr Mullins does not require detailed discussion. It was to the effect that if the incorrect portions of exhibits B and C were excised one would be left with a document that did constitute compliance with article 48 (f) (i) in that it set out the essence of a version, that the plaintiff was knocked down by a vehicle while he was in the process of crossing the street. The short answer thereto is that the incorrect averments cannot simply be ignored; they were an integral and inseparable part of the version that was presented in the affidavit, and the entire version requires to be looked at.


[30] Similarly, I cannot accept Mr Mullins’s invitation to find that the plaintiff’s evidence as to what transpired between him and his attorney in regard to exh B may have been an ill-advised attempt on his part to place the blame on his attorney for the contents of the document in order to counter the cross-examination based on the contents of the document and the adverse effect it might have on his credibility vis-a-vis the version he relied on during the hearing. The clarity of the plaintiff’s evidence on the aspects in question precluded such an accommodating approach. In any event, if the evidence referred to were to be rejected as false the undisputed fact would still remain that a document setting out a false version was signed by the plaintiff, and submitted by his attorney as his agent in purported compliance with the provisions of article 48 (f) (i).


[31] Mr Scott accepted, correctly in my judgment, that where a plaintiff, in his affidavit, puts forward a particular version and pursues that same version at the trial, but in the result, the Court, on an application of the principles relating to the onus, finds on a balance of probabilities that another, materially different, version advanced by the defendant is to be accepted and that of the plaintiff rejected as false, that would not mean that the defendant could raise the special defence that therefore the contents of the affidavit were, on a balance of probabilities, false and that, accordingly, the plaintiff had not submitted an affidavit in which the particulars of the accident were fully set out. The comments in para [26] above would be relevant in such a case.


[32] Mr Scott did include in his argument the submission that should it transpire during the hearing that the version of a plaintiff, being a repetition of what he had set out in his affidavit, was not only not preferable to that of the defendant on a balance of probabilities but was in fact also mendacious in material respects and that the Court would be justified in making a positive finding that the plaintiff had, on those material aspects, in fact lied, the corollary of which would be that he similarly lied in his affidavit, it would be open to the defendant to invoke the provisions of article 48 (f) (i) and seek an order in terms thereof that the plaintiff be non-suited. He pointed out that, as was said in Moskovitz, an affidavit is a solemn document intended to reflect an accurate account which could be relied upon. I do not find it necessary, however, to decide this question.


[33] Mr Scott further accepted, again correctly, that the mere fact that an affidavit contained errors would be insufficient to found a reliance on article 48 (f) (i). As counsel pointed out, the issue would be dependent on the precise nature and extent of the errors and the bearing they had on the question whether, as regards the contents of the affidavit as a whole, there was substantial compliance with the requirement that the particulars of the accident be fully set out.


[34] The main thrust of Mr Scott’s argument rested on the fact that on the plaintiff’s own clear showing the contents of exh B were false in material respects (and yet he signed same), that on that showing his attorney was made unequivocally aware of that fact, that by virtue of what the plaintiff told him the attorney must also have been aware that material aspects in exh C were also false (as indeed, also in terms of Mrs Zenzile’s evidence, they were). I agree that, as regards the version put forward, the respects in which the exhibits were false were material. A version materially different from the plaintiff’s true version was advanced therein. It further incorrectly reflected a false material fact, that in the plaintiff’s company was an eye-witness. (The fact that on Mrs Zenzile’s evidence Clifford might have witnessed the accident does not assist the plaintiff as the circumstances in which he was a witness would have differed materially from the circumstances portrayed in the exhibits). The position is thus that the plaintiff’s attorney wittingly and deliberately submitted affidavits to the defendant that were false in material respects. To countenance such conduct would be to negate the purpose of article 48 (f) (i). The comments made earlier concerning an affidavit being a solemn document which could be accepted as being reliable, i.e., as being true in the sense of being honest, come into play. The two documents do not satisfy these requirements. In my judgment, where the shortcomings in the affidavit concerned false statements of material facts and where such statements were wittingly and deliberately included therein, the calculated effect of which was the misleading of the defendant and the perpetration of a fraud on it, there can be no suggestion of proper or substantial compliance with the provisions of article 48 (f) (i).


[35] Mr Mullins sought to meet these considerations on two bases. First, he invoked the approach in cases such as Pretorius and submitted that despite the falsity of the contents of the exhibits, the purpose of article 48 (f) (i) was in fact achieved: the defendant was placed in the position where it could, and did, vis-a-vis the averments in the exhibits, properly investigate the matter and adopt an attitude towards the claim; on the strength of the information it garnered in it raised a defence and pursued it at the trial. In the second place, he sought to place reliance on the fact that in the result agreement was reached that the matter be decided on the version relied on by the defendant. In short, the submission was that the defendant had not been occasioned any prejudice. However, the matter is not as simple as counsel would have it. The purpose of article 48 (f) (i) was that a defendant be afforded the opportunity of investigating, and assessing what attitude it should take vis-a-vis a version that honestly reflected the plaintiff’s case in its material features. That opportunity was denied to the defendant in the present matter and the purpose of the legislation was not achieved. The fact that in the result the defendant, on the strength of other evidence it secured, decided, and might in any event have decided, to resist the claim does not and cannot dictate a finding that there was substantial compliance with the provisions of the article. As Mr Scott correctly pointed out, to uphold Mr Mullins’s submission would be tantamount to holding that if the defendant properly investigated a claim and, on the strength of the evidence it secured, decided in any event to resist the claim, it would not matter what the content of the affidavit submitted in purported compliance with article 48 (f) (i), was and however misleading and fraudulent it was. That cannot be the law.


[36] I hold therefore that the plaintiff is to be non-suited on the basis that there was no proper compliance with the provisions of article 48 (f) (i). That conclusion renders it unnecessary to decide the other issues that arose during the hearing.


[37] The following order will accordingly issue:

(a) The plaintiff’s claim is dismissed and judgment is entered in favour of the defendant with costs;

(b) The costs shall include:

(i) the costs of the application for leave to amend including the costs of the opposition to the application, and the costs of the amendment,

(ii) the qualifying expenses, if any, of Prof Baart.




_____________________

F. KROON

JUDGE OF THE HIGH COURT