IN THE HIGH COURT OF SOUTH AFRICA NATAL PROVINCIAL DIVISION REPORTABLE CASE NO: AR 47/2008 In the matter between: A CHETTY APPELLANT and ROAD ACCIDENT FUND RESPONDENT JUDGMENT GORVEN J [1] On Thursday 28 March 2002 at approximately 14h00, the appellant s attorney, Ms Ramnarain ( Ramnarain ) arrived at Durban Bay House having driven from Chatsworth. The regional office of the defendant was located on the19 th Floor. Her goal was to hand deliver the claim documents ( the claim ) of the plaintiff arising from a collision which had occurred on 30 March 1999. She was keenly aware that if it was not delivered by 29 March 2002, the plaintiff s right to claim compensation would become prescribed. This in terms of section 23 of the Road Accident Fund Act 56 0f 1996 ( the Act ). [2] She was also keenly aware that she could not hand deliver the claim the following day which was Good Friday and thus a public holiday. She expected the defendant s regional office to be closed on public holidays. What she had not reckoned with was the custom, which had apparently developed in that office, to close the office at approximately noon on days before public holidays. There was therefore no-one at the defendant s office available and authorised to receive and receipt hand delivered claims.
2 [3] Ramnarain was met in the foyer by a security officer who refused her access beyond the security point. He told her that the office of the defendant was closed and that nobody was allowed beyond that point. When she pointed out her predicament, he suggested that she deposit the claim in a wooden box ( the box ) in the foyer which the defendant used to receive documents. She did so and left. [4] The defendant repudiated liability for the claim whereupon the plaintiff issued summons. In her particulars of claim she averred that she had complied with the provisions of the Act. This prompted the defendant to enter a special plea to the effect that the claim was only lodged on 4 April 2002 and, accordingly, the plaintiff s right to claim compensation had prescribed. The defendant pleaded over, denying, amongst other things, that the plaintiff had complied with the relevant provisions of the Act. Although the plaintiff raised an estoppel by way of a replication to the special plea, no evidence was led in support of the replication and Mr Pillay, who appeared for the plaintiff on appeal, disavowed any reliance on the replication. [5] The matter was heard in the Magistrate s Court for the district of Durban and, by agreement, only the special plea was dealt with as a separate and initial issue. No specific order was made and no discussion relating to the onus of proof took place. The plaintiff assumed the duty to begin. It is clear that, as part of the special plea, it was necessary for the plaintiff to prove that she had lodged the claim within the prescribed time limit. A court ordering
3 a separation of issues is required to define clearly and precisely the issues to be separated (Denel (Edms) Beperk v Vorster 2004 (4) SA 481 (SCA) 485). This was not done in the court a quo. In the event, the question of the onus of proof did not come into play in the light of the evidence led in this matter. I will deal below with the form the order should have taken in the circumstances. [6] The appeal turns on whether depositing the claim in the box in the foyer of Durban Bay House amounted to delivery of the claim to the defendant on the day on which it was deposited or not. No evidence was led by the defendant to gainsay that of Ramnarain as set out above. In fact, the defendant s evidence in the person of Ms Ramroop, a claims handler, assisted the plaintiff to an extent. Her evidence confirmed the practice of closing the office early on the day before public holidays and that this had happened on 28 March 2002. She also testified that claims deposited in the box in the foyer were treated as hand delivered claims by the defendant and were receipted at the end of each working day as having been received on that day. The receipting did not take place at the end of 28 March 2002 even though it was a working day because the offices had closed early. She could not give specific evidence as to how the plaintiff s claim was treated or explain how it happened that the receipt stamp on it bore the date 4 April 2002. [7] The defendant claimed that the plaintiff had not complied with the provisions of section 24(1)(b) of the Act and that, accordingly, the claim was not delivered in time. Section 24(1)(b) reads as follows:
4 A claim for compensation and accompanying medical report under section 17(1) shall- (b) be sent by registered post or delivered by hand to the Fund at its principal, branch or regional office, or to the agent who in terms of section 8 must handle the claim, at the agent's registered office or local branch office, and the Fund or such agent shall at the time of delivery by hand acknowledge receipt thereof and the date of such receipt in writing. [8] I have not found any decided cases on section 24(1)(b) of the Act which relate to hand delivery. I have also not found any on the many precursors to that section. We were not referred to any in argument. I will deal below with a case which refers in an obiter dictum to such a precursor. [9] One such precursor was section 11bis of the Motor Vehicle Insurance Act 29 of 1942 ( section 11bis ) which read as follows: A claim for compensation under sec. 11 shall be set out on the form prescribed by regulation in such manner as may be so prescribed and shall, accompanied by such medical report or reports as may be so prescribed, be sent by registered post or delivered by hand to the registered company at its registered office or local branch office, and the registered company shall, in the case of delivery by hand, at the time of the delivery, acknowledge receipt thereof and of the date of such receipt in writing. [10] It can be seen that section 24(1)(b) of the Act is to all intents and purposes identical to this section. In the matter of Commercial Union Assurance Company of South Africa v Clarke 1972 (3) SA 508 (A) a claim form had been sent to the registered company by ordinary post. It was common cause that it was despatched by post on 22 February, that it was
5 received on 26 February and that summons was issued and served on 23 April. The issue was whether the period of 60 days required to elapse prior to service of the summons had elapsed. In seeking to dismiss the action as premature, the registered company argued that the 60 days should be counted from the date on which the claim letter was received, viz. 26 February. The court held that the word sent in section 11bis referred to the date on which the documents were despatched by post. As to the argument that the word sent should be construed to refer only to registered post, Holmes JA commented as follows at 517 B C: Similarly, in the present case I entertain no doubt but that the provision in sec.11bis as to registered post is also directory. The basic test, in deciding as to the imperative nature of a provision, is whether the Legislature expressly or impliedly visits non-compliance with nullity... And further, at 517 G H: [I]t is important for a claimant to be able to know when he may serve his summons, in other words, the exact date as from which the period of 60 days begins to run. We have already held that it runs as from the date when the letter containing the relevant information is (i) despatched (as distinct from delivered) by post or (ii) delivered manually, as the case may be. In the latter event the company is enjoined to acknowledge in writing the receipt thereof and the date of such receipt. Why? Clearly for the purpose of providing the claimant with proof of the date from which the statutory period begins to run, for the onus is on him to prove the expiration of a period of 60 days as from the date on which the claim was sent or delivered, as the case may be, before service of the summons.
6 He concluded his discussion of this aspect as follows at 518 A C: The provision just mentioned is therefore primarily one for the benefit of the claimant. And if he elects to send the claim by post, he is enjoined to register it. Why? Again, primarily to furnish him with proof of the date, by means of his registration slip, as from which the period of sixty days begins to run... [I]n a statute which sets out to give third parties the greatest possible protection, I see nothing incongruous about the Legislature directing a procedure for their benefit. If a claimant elects to eschew the facilities of proof indicated in the sub-section, that is his risk. In my view this procedural provision as to registering the posted claim is directory only. To hold that it is imperative, with non-compliance being visited with nullity, would in my view subvert the scope and object of the Act to give the greatest possible protection to third parties. [11] Clarke s case, of course, dealt only with posting and did not deal at all with the procedure for delivery by hand. As can be seen from the quote above, Holmes JA distinguished between posting and delivery. [12] The ordinary meaning of deliver has been held to be to place in possession (Ficksburg Transport (Edms) Bpk v Rautenbach en n Ander 1988 (1) SA 318 (A) at 332G-H). In Amcoal Collieries Ltd v Truter 1990 (1) SA 1 (A), an option had been granted. The contract contained the following phrase Die partye kies die volgende adresse vir bediening van kennisgewings kragtens hierdie kontrak Notice of acceptance of the option was placed under the door of the address chosen by the respondent in his absence. The respondent denied that the appellant had validly exercised the option,
7 contending that it had only come to his attention after his return and after the last date for the exercise of the option. The court a quo held that bediening meant service or betekening. The court rejected this on appeal where Nicholas AJA said the following (at 5A-B): In my opinion the word 'bediening' was used by the parties for 'diening', and 'dien' means (vide Die Afrikaanse Woordeboek (op cit )) 'besorg', 'afgee', 'aflewer'. It does not necessarily connote personal service. It was argued on behalf of Truter that on a proper interpretation of clause 15 it required delivery to 'die eienaar' and that the address indicated no more than the place where 'die eienaar' was to be found. The clause is not capable of bearing that construction. It states that 'die partye kies die volgende adresse...' and then goes on to particularise 'die partye' - viz 'die eienaar' and 'die prospekteerder' - and their respective addresses for service. The court therefore equated bediening with aflewering and specifically held that is does not connote personal service where an address is given. [13] The matter of Konstantinou v Allianz Insurance Ltd and Others 1992 (2) SA (N) dealt with section 14(2) of the Motor Vehicle Accidents Act 84 of 1986 ( section 14(2) ). Section 14(2) had to do with the interruption to prescription after the expiration of a period of 90 days from the date on which the appointed agent delivers to the claimant or his representative per registered post or by hand a notice either to repudiate liability or make an offer of settlement. McLaren J noted that this section required delivery as distinct from section 15(1)(b), another precursor to section 24(1)(b) of the Act. Section 15(1)(b), like section 24(1)(b) of the Act, retained the two procedures
8 of being sent by post or delivered by hand dealt with by Holmes JA. In Konstantinou, McLaren J noted that no such distinction was made in section 14 (2) in that the section required the communication to be delivered (not sent) by post or by hand. He held, therefore, that the 90 day period only commenced when the letter was placed in possession of the claimant by hand or was actually received by the claimant after having been posted. In arriving at this conclusion, McLaren J said the following (at 168E): The delivery by hand envisaged in ss 14(2) and 15(1)(b) of the Act can only mean that the recipient of the notice or claim for compensation must be placed in possession thereof, by hand. The delivery by registered post prescribed in s 14(2) of the Act should, therefore, also mean that the claimant or his representative should be placed in possession of the notice, by registered post. [14] The Amcoal and Konstantiou cases make it clear that what is required is that delivery takes place when a person is placed in possession of the relevant documentation. Whether this happened in the present matter requires an assessment of whether the plaintiff proved that depositing the claim into the box amounted to the defendant being placed in possession of the claim. Two elements are essential for possession, animus and detentio (Nienaber v Stuckey 1946 AD 1049). The defendant had physical control over the box. The evidence of Ms Ramroop is to the effect that the defendant regarded documents deposited into the box as having been received by it on the day they were placed there. Both the physical and mental elements were accordingly present. The defendant was thus placed in possession of the claim when Ramnarain deposited the claim by hand in the box. I am of the
9 view, therefore, that the claim was delivered by hand when it was placed in the box at approximately 14h00 on 28 March 2002. [15] To the extent that the dictum of McLaren J may be construed to require hand to hand delivery in order to have placed the claim in the possession of the defendant, it is clear that, in relation to section 15(1)(b), it is obiter since the case concerned only the interpretation of section 14(2). Even if it were not which, as indicated above, I doubt, I am in respectful disagreement with it. In the first place, the Amcoal case makes it clear that personal service in not required to effect delivery to a specified address. Section 15(1)(b) specifies the principal, branch or regional office of the defendant or, if delivered to an agent, the agent s registered office or local branch office. In the second place, Section 14(2) related to delivery to a claimant, a natural person whereas both section 15(1)(b) and section 24(1)(b) of the Act relate to delivery to either a company or an artificial person created by statute. An artificial person cannot itself receive delivery into a hand since it can act only through human agency. In the third place, the section does not specify delivery to a hand, only delivery by hand. [16] Even if I am wrong in this, however, the words of Holmes JA are no less applicable to a delivery by hand provided for in section 24(1)(b) of the Act than they were to posting. The procedure of delivery by hand and the requirement that the defendant receipt the claim are intended to benefit a claimant. Neither of these is imperative for a claimant. If a claimant does not avail herself of the facility of proof arising from these procedures, she simply
10 makes it more difficult to prove delivery on a specific date. As mentioned above, the plaintiff was assisted by the evidence of Ms Ramroop that the deposit of a claim into the box in question was regarded as delivery on the working day on which it was deposited. In the absence of evidence to the contrary, the evidence of Ramnarain to the effect that she deposited the claim in the box at approximately 14h00 on 28 March 2002, therefore proved delivery to the defendant on that date. [17] In addition, as pointed out by Holmes JA in Clarke s case, the courts have constantly reaffirmed the scope and purpose of the Act as being to afford to claimants the greatest possible protection (see also Engelbrecht v Road Accident Fund and Another 2007 (6) SA 96 (CC) at 102, para [23]). Had the defendant not regarded a deposit into the box as delivery it was required to have staff available to receive claims during working hours. If it had not done so, the defendant would have rendered unavailable to the plaintiff the means to hand deliver a claim that afternoon. [18] I am accordingly of the view that the learned magistrate erred in upholding the special plea. [19] As regards the issue of costs, Section 24(1)(b) enjoins the defendant to acknowledge receipt thereof and the date of such receipt in writing. The defendant failed to comply with this clear statutory imperative by having staff available to receipt hand delivered claims that afternoon. This forms one of the two procedures provided to claimants by the legislature to facilitate proof
11 of the date of delivery. Had an employee of the defendant been present that afternoon to receive and receipt claims, there would have been no argument as to the date on which the claim form was delivered and thus no special plea. This fact renders the raising of the special plea vexatious and should be visited with a punitive costs order. Mr Pillay confined his request for a punitive costs order to the costs of the appeal since the evidence at the trial made it clear that the claim had been delivered in time. Mr Mazibuko, who appeared for the defendant, commended himself with the candour with which, in my view, he quite properly conceded this point in argument as well as that the conduct of the defendant in not having staff available to receive and receipt hand delivered claims that afternoon was unacceptable. He was instructed to oppose the punitive costs order but was unable to make any contrary submissions with any force. [20] Since the issue dealt with at the trial necessitated proof by the plaintiff that her claim was duly delivered on 28 March 2002, this should have formed one of the issues dealt with in the separation order and in the order made by the learned magistrate. [21] In the result, the appeal is upheld with costs on the scale as between attorney and client. The order of the magistrate is set aside and the following order is substituted: 1. The special plea is dismissed with costs, including the costs of preparation for the argument.
12 2. It is declared that the claim form of the plaintiff was duly delivered to the defendant by hand within the meaning of those words in section 24(1)(b) of the Road Accident Fund Act 56 of 1996 on 28 March 2002. GORVEN J VAN ZŸL J 18 DECEMBER 2008 For the appellant: L Pillay SC instructed by Sha Kumar & Associates For the respondent: GL Mazibuko (attorney) instructed by Linda Mazibuko & Associates