These cases held, in relation to article 62(a)(i) (and its predecessors), that the requirement of a claim form was peremptory; that
the prescribed requirements in regard to contents of the claim form were directory and that what was required was substantial compliance
with such requirements. See SA Eagle Insurance Company Ltd v Lynne Pretorius (supra);Rondalia Versekeringkorporasie van Suid-Afrika
Bpk v Lemmer 1966(2) SA 245 (A); Nkisimane and Others v Santam Insurance Co Ltd 1978(2) SA 430 (A), particularly at 435F - 436E;
AA Mutual Insurance Association Ltd v Gcanga 1980(1) SA 858 (A) at 865 B-F; Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A);
Guardian National Ins Co Ltd v Van der Westhuizen 1990(2) SA 204 (C).
I shall consider later whether there is any need in the present case to debate further these principles.
In this Court the focus of appellant's argument was slightly different but in essence the same questions arise, namely, does an
12 affidavit constitute documentary proof; what is encompassed by the
word "proof; need the document submitted as proof be of an
essentially official character and must the documentary proof be read
independently of the claim form and establish on its own that the
person's death resulted from the accident to which the claim relates?
In the case of Multilateral Motor Vehicle Accidents Fund v
Radebe 1996 (2) SA 145 (A) at 152 E-I this Court held that the
benefit which the claim form was intended to give the Fund had to be
given effect to and such benefits were not to be "whittled away".
Appellant sought to apply this dictum to the present case. It should,
however, be borne in mind that in Radebe's case the question debated
was one of non-compliance with the then applicable regulation and
the Court's decision was related to this question. Over and above
that, in this case a provision which reads differently from regulation
9(1)(b)(ii) (which is quoted by Nestadt JA at p 148 C-D) which then
applied, has to be considered.
13 The benefit the MVA form is intended to confer on the insurer
or the Fund (obviously for practical reasons) is that it is to "invite,
guide and facilitate" investigation by the insurer. See Guardian
National Insurance Co Ltd Van der Westhuizen (supra) at 21 OF. No
doubt this is so and equally it is no doubt clear that there is no
obligation on the insurer on its own to undertake an investigation in
relation to matters which a claimant is obliged to bring to its notice.
But the question which arises in the present case is not, as I see it,
whether the insurer has been given the information which the claimant
is obliged to give it or which it needs to facilitate any investigation
which it may wish to make, but whether this information has been
given in a particular manner or form.
It is, I think, plain that if the separate documents enclosed under
cover of the letter of 16 March are read together and with proper
insight then the information the claimant is required to give may be
garnered therefrom. I understood appellant's counsel to concede, in
14 answer to questions put by the Court, that it was possible by reading
the documents as a whole and together to determine that the death of
the person concerned had resulted from the accident to which the
claim related. Is there then implicit in the article some technical
requirement as to the manner in which the information must be
supplied which, if not met, would render the claim unenforceable?
The first questions are what constitutes "documentary proof
and what is the effect of phrase in article 62(b)(ii) "such as a copy of
the relevant inquest record or, in the case of a prosecution
a copy
of the charge sheet". It will have been seen that in the plea as
(originally) framed the underlying premiss was that it was one or
other of these two documents which had to be supplied. This was
perhaps influenced by the terms of earlier regulations and decisions
dealing with them. In this Court the emphasis shifted to a challenge
as to whether an affidavit such as that by Madonsela constituted
documentary evidence and also involved the contention that at least
15 a document of an official character was called for.
It clearly cannot be correct that only one or other of the two specified documents would suffice. They are mentioned as examples following
upon general words which have to be given effect to. They are not imperatively called for - which indicates that some other document
may suffice. Furthermore, in the context it does not seem that there is a need for an ejusdem generis interpretation. I should add
that while the maxim noscitur a sociis is sometimes useful in ascertaining the intention of the legislature it is not a hard and
fast rule to be applied in all cases. Rex v Jones 1925 AD 117 at 129. It is a rule applied normally where the general words follow
upon special ones. Here the order is the opposite and it would seem evident both from this fact and from the words "such as"
that the legislature intended that general words should have their full effect.
This conclusion would seem to be supported also by posing the question as to whether there is any special significance to be given
to
16 the word "proof. In as much as one is concerned with an obligation
to provide information at the very commencement of procedures to
enforce a claim which will (if contested) ultimately be decided by a
court it is difficult to accept that proof such as is required in a
criminal or even civil case could have been contemplated. What it
seems is called for is rather some other documentary form of
confirmation of the more terse averments in the MVA 13 form.
Example were suggested to appellant's counsel, namely, what
better documentary proof of the fact that the person's death had
resulted from the accident in question than an affidavit from, say, the
investigating officer in the case or by a medical practitioner who had
both witnessed the accident and attended the deceased at the time of
his death? One is aware that an inquest does not necessarily always
have a conclusive outcome. Nor does a charge sheet necessarily
confirm such facts as those required. It contains mere allegations. I
understood counsel to concede the point and in so doing he was in my
17 view clearly correct. Once one is merely concerned to obtain
confirmation from a source other than the claim form itself, why need
there be a restriction on the form in which that confirmation is given?
The word "documentary" connotes nothing more than the dictionary
meaning of the word namely "of the nature of or consisting of
documents".
What has been said also, I think, disposes of the contention that the documentary proof must take on some official character. But
this contention is even more effectively met by the observation that had this been intended nothing would have been simpler than
inserting words such as "of an official nature".
It also seems to me to follow logically and naturally from what has been said that the "confirmation" must be read together
with the MVA13 form and that there can be no justification whatever for suggesting that the documentary proof must be contained in
one all embracing and self-contained document.
18 In the result, I am of the view that there was in this case actual
and complete compliance with the requirements of article 62(b)(ii).
This renders any discussion of the concept of substantial compliance
unnecessary.
The order I make is that the appeal is dismissed with costs.
C PLEWMAN JA
CONCUR
NIENABER JA) HOWIE JA) MARAIS JA) MELUNSKY AJA)
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