South African Eagle Insurance Company Ltd v Van Der Merwe NO (457/1996) [1998] ZASCA 12 (17 March 1998)

2 This appeal concerns the enforceability of a claim for

compensation under the Multilateral Motor Accidents Fund Act 93 of

1989 ("the Act") - which has since been replaced by the Road

Accidents Fund Act 56 of 1996. The matter was argued in the court

a quo on a case stated in terms of Rule 33 (4). It was held that the

claim was enforceable. Leave to appeal was granted in this Court on

petition to the Chief Justice.

The material facts derived from the stated case and the documents forming part thereof are the following. On 29 January 1991 one Bheki Shabala (the deceased) was a passenger in a motor vehicle HKR 645 T when it was involved in a collision with a heavy duty vehicle KDL 264 T - the property of Koornfontein Colliery. It can be accepted for present purposes that the driver of vehicle KDL 264 T was negligent and that his negligence caused the collision. The deceased was killed outright.

As a result a claim was made on the appellant by the natural

3 guardian, the grandmother, of a minor Sipho Mxolisi Shabala - the

lawful issue of Bheki Shabala. It should be added in parentheses that

respondent was at a late stage in the proceedings appointed curator ad

litem to the minor after his guardian died. The original claim form,

which is annexed to the stated case, was completed by the guardian

and this was forwarded to the appellant, together with the documents

listed below, under cover of a letter from claimant's attorneys dated

18 March 1993. The form used appears to be an outdated version of

the prescribed form but no point was made of this either in the court

below or on appeal. I will refer to it as the MVA 13 form. The

supporting documents consisted of a photostat of the identity

document of the claimant - that is the guardian; a photostat of the

birth certificate of the minor; a photostat of the death certificate of the

deceased Bheki Shabala; a statement setting out the computation of

the claim and a copy of a sworn affidavit by one T N Madonsela, who

was the driver of the vehicle in which Bheki Shabala was a passenger

4 explaining how the collision occurred. The letter requested a formal

acknowledgement of the receipt of the aforegoing documents. On 29

April 1993 the manager of appellant's claims department, on

appellant's behalf, wrote to claimant's attorney. The letter sets out the

genesis of the present dispute. It reads :

"Your letter dated 18 March 1993 refers.

Please forward a full copy of the inquest record.

Please note that you have not complied with Article 62(b)(ii) and therefore your claim is not valid.

Please also furnish us with a full unabridged birth certificate relating to the minor as proof of maternity.

We advise that we are awaiting an assessor's report on the merits of this matter.

We await your reply."

The response by claimant's attorneys need not be set out but it should be noted that they did seek enlightenment as to the respects in

5 which they had allegedly failed to comply with Article 62(b)(ii). This

enquiry was left unanswered. After summons a special plea was filed

in the action. That plea, dated 28 July 1991, takes the following form:

"The plaintiff alleges that her deceased husband (sic) sustained injuries in a collision on 29 January 1991 which caused him to die on the same date.

In terms of Article 62(b)(ii) the plaintiff was obliged to lodge simultaneously with her claim form a copy of the inquest report or charge sheet which has a bearing on the collision.

The plaintiff failed to furnish simultaneously with the submission of her claim form an inquest report. In the premises the plaintiffs claim is premature and unenforceable."

There are further facts to be noted. In the MVA 13 form paragraph 7 calls, in circumstances where a person was fatally injured, for additional information. This was responded to in the form in the manner which I now set out. I quote the terms of the original document and the response, inserting the letter A before claimant's

6 response:

"(a) Plek waar dood plaasgevind het. A. Blinkpan

2. Datum van afsterwe A. 29.1.1991.

3. Is dit bekend of daar 'n geregtelike dood ondersoek gehou is.

(Heg 'n afskrif aan van die verslag oor die nadoodse ondersoek, indien beskikbaar.) A. Nee - moontlik Ja.

(d) Indien bekend, meld in watter hof. A. Blinkpan,
D-A.7 en Verwysingnommer A MR 01280191."

(The reference to MR 01280191 is a reference to the number of the police docket - as paragraph 4 of the form makes clear.)

The death certificate which accompanied the MVA 13 form did not, in its terms, give information as to how the injuries which caused the death were occasioned. The affidavit by the driver appears to be an affidavit relating to the driver's own claim. The complaint of the appellant is that, while fully describing the event and the fact that a passenger in his vehicle was killed, it does not in its terms give the name of the deceased. Appellant's observations in this regard are

7 correct. The question is whether or not these (separate) documents

are to be read together and further whether they are to be read with the

MVA 13 form. If the affidavit is to be read in isolation it cannot

suffice to establish that the deceased was the person killed in the

collision. If however the other documents are to be read with it the

lacuna in the affidavit is made good. The issue is framed in the stated

case as follows:

"The defendant contends that the plaintiff has not submitted a valid claim form and that by virtue of the

provisions contained in the Multilateral Motor Vehicle Accidents Fund, Act 93 of 1989, the plaintiffs claim is invalid; alternatively premature and consequently falls to be dismissed with costs."

[In 1996 claimant did obtain a copy of the inquest record and, well after the close of pleadings, submitted this to appellant. In the stated case the effect of this was also raised as an issue but this was seemingly either abandoned or simply disregarded and it need not now be considered.]

8 In terms of s 2(1) of the Act, the Agreement set out in the

Schedule thereto had the force of law as if it were a statute. Article

40 imposed an obligation on the Fund or its appointed agent (in this

case the appellant) to compensate a claimant who had suffered loss.

Article 62(a) provided that the claim for compensation was to be set

out in a prescribed form and was to be accompanied by a medical

report. The manner in which the medical report was to be completed

was laid down in article 62(b)(i). This then brings me to article

62(b)(ii) which is the article in issue in the appeal. Article 62(b)(ii)

read as follows:

"(ii) Where a person is killed outright in a motor accident the completion of the said medical report shall not be a requirement, but in such an event the form prescribed by the Board in terms of paragraph (a) shall be accompanied by documentary proof, such as a copy of the relevant inquest record or, in the case of a prosecution of the person who allegedly caused the deceased's death, a copy of the relevant charge sheet from which it can clearly be determined that such

9

person's death resulted from the accident to which the claim relates."

While I have confined the quotation to the provisions of article 62(b)(ii) it must be borne in mind that this must be interpreted in the context of the agreement as a whole and in the light of the history of the legislation. In this regard it is clear that the Act was at the relevant time but the latest in a line of statutory enactments which date back to 1942 designed to compensate persons injured or the dependants of persons killed as a result of the negligent driving of motor vehicles. The intention throughout has been to give such persons the greatest possible protection. See Aetna Insurance Company v Minister of Justice 1960 (3) SA 273 (A) at 285 E-F. A court construing the legislation will then not be astute to uphold technical objections based on form rather than substance. It will also recognise that the legislative amendments and re-enactments since 1942 must be seen as attempts to adapt, refine and improve the system of compensation. See SA Eagle Insurance Company Limited v Lynne

10 Pretorius (case no 397/96 in this Court - still to be reported).

In the court below appellant's argument was founded on the

lacuna between the death certificate and the affidavit. It was

contended firstly that what was called for by article 62(b)(ii) was

proof in the form of a document which, standing alone and

independently of supplementary documentation and, in particular,

independently of anything stated in the MVA 13 form, established

that the person concerned's death resulted from the accident to which

the claim related. The court a quo held that the documents sent under

cover of the letter of 18 March 1991 and the MVA 13 form had to be

read together and that when so read, if the claimant had not literally

complied with the article, she had so nearly done so as to

unambiguously render it plain that the death had resulted from the

accident. There had accordingly been substantial compliance.

Substantial compliance has been held in a long line of decisions to be

sufficient to render the claim enforceable under earlier provisions.

11

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)