THE HIGH COURT OF SWAZILAND
the matter between
ROYAL INSURANCE CORPORATION Defendant
THE PLAINTIFF : MR.
THE DEFENDANT : MR.
this action the plaintiff claims damages against the defendant as
statutory insurer in respect of loss of dependency arising out of the
death of his son in a motor accident. In a special plea the defendant
alleges that the plaintiff's claim is prescribed in that the summons
was served on the defendant after the prescription period set out in
section 21 of the Compulsory Motor Vehicle Insurance Order, 1973 had
expired. The parties have agreed that this issue should be dealt with
separately at the outset.
21(1) of the Order reads:
right to claim compensation under section 18 from an authorised
insurer shall become prescribed upon the expiry of a period of two
years from the date upon which the claim arose:
that prescription shall be suspended during the period of ninety days
referred to in section 22(2).
remaining sub-sections then provide for the manner in which relief
may be obtained from the operation of sub-section (1) where a claim
has become prescribed. As the plaintiff has taken no steps to obtain
such relief it is unnecessary to set out these provisions.
is common cause that the plaintiff's claim arose on 22nd April, 1982
and that for the provisions of. section 21(1) to have been strictly
complied with the summons should have been served not later than 21st
that the summons was not in fact served until 9th November, 1984.
However, the plaintiff contends that strict compliance with section
21(1) was waived by the defendant and that it is not now open to the
defendant to plead prescription.
plaintiff's contention is based on the following facts which emerged
from the evidence of Zombodze Magagula who is the defendant's
asistant claims manager and who was the only witness called on this
preliminary issue. He accepted that on 6th March, 1984 the defendant
wrote a letter to the plaintiff's attorney stating:
wish to advise that we have written a letter to the owner of the
insured vehicle asking him to complete a motor accident report form.
As soon as we receive the same we shall, no doubt, revert to you."
that on 30th July, 1984 the defendant wrote a further letter stating
that it had received no response from the vehicle owner and
assist us will you please provide vouchers in respect of the various
items totalling E4,000 on the statutory claim form and as we have
absolutely no information regarding the accident are you able to
provide us with a copy of the police report?"
Magagula also accepted that on 21st September, 1984 the defendant
wrote again to the plaintiff's attorney stating that the claim was
being passed to its attorney for his consideration and seeking
further information concerning the claim. 'Lastly, he accepted that
on 3rd October, 1984 the defendant's attorney wrote to the
plaintiff's attorney in the following terms:
have been instructed to act in this matter and we must say that we
have great difficulty with the claim submitted on behalf of your
the first instance our clients tend to fight this claim on the merits
as there is no proof that the insured vehicle collided with the
the second instance there is no proof whatsoever that the children on
behalf of whom the claims are submitted were in fact the children of
the deceased. May we simply suggest that you issue Summons in this
matter unless you -are able to satisfy us properly in writing
regarding the claims and regarding the merits of the case."
other piece of evidence given by Mr. Magagula upon which the
plaintiff seeks to rely is that the report which the defendant was
endeavouring to obtain from the owner of the insured vehicle was in
fact received on 4th September, 1984 but the plaintiff's attorney was
not informed of its receipt. Mr. Magagula, however, denied the
suggestion put in cross-examination that there was any
on the defendant to disclose this information or for that matter the
contents of the report.
is on the basis of the foregoing facts that Mr. Dlamini submits that
prescription was waived. He says that the defendant encouraged the
plaintiff to believe that it would enter into negotiations once the
report from the owner of the insured vehicle was received but despite
such encouragement failed to inform the plaintiff of the receipt of
the report and expressly invited the plaintiff to launch proceedings
in its attorney's letter dated 3rd October.
defendant's conduct, says Mr. Dlamini, should be construed at very
least as a tacit waiver of any reliance on the provisions of section
mere fact that negotiations have taken place between a claimant and a
person against whom a claim is made does not debar the defendant from
pleading prescription, even though the negotiations may have led to
delay and caused the claimant not to bring his action until the
statutory period has passed Halsbury's Laws of England 4th Ed. Vol.28
para.608; Hewlett v London County Council (1908) 72 JP 136. That is
not only the position as governed by the law of England but, in my
view, must be the position under the Roman-Dutch law. However,
prescription can be waived, extended or suspended by- agreement,
either express or tacit, and for Mr. Dlamini's submission to succeed
it must be possible to find such an agreement in the correspondence
referred to. It would be possible to -find such an agreement if the
correspondence showed that the parties had agreed that there was a
liability on the defendant to pay compensation and all that remained
was for the court to determine the amount.
Wright v John Bagnall & Sons Ltd 1900 2QB 240; Cohen v Snelling
1943 2 All E.R. 577; and Agnew v Union and South West Africa
Insurance Co. Ltd. 1977 (1) S.A. 612. However, the correspondence in
the present case discloses no such agreement. On the contrary, it
shows that until the receipt of the report from the owner of the
insured vehicle in September, 1984 the defendant considered itself in
no position to
into any negotiations with the plaintiff's attorney let alone to
agree liability and thereafter it passed the matter to its attorney
for his consideration. Having considered the matter the attorney
repudiated any liability.
agreement to waive prescription was ever made and the plaintiff's
attorney should never have permitted himself to be lulled into a
false sense of security by reason of the mere fact that the defendant
was indicating in correspondence that it was not yet in a position to
negotiate. He should have kept a firm eye on the statutory period of
prescription and once the expiration of that period was imminent he
should either have sought an agreed extension of time or should have
issued process. He did neither.
that remains to be considered is the suggestion in the attorney's
letter of 3rd October that the plaintiff should issue a Summons. In
my view, by no stretch of the imagination can this be construed as a
waiver of the statutory period of prescription. There was no
obligation on the defendant or its attorney to advise the plaintiff
of any of the defences it might run and indeed it may well be that
the question of prescription never even occurred to the attorney at
that point in time.
the Court is bound to feel some sympathy for a plaintiff whose claim
is debarred by prescription his remedy was to seek relief as provided
for in the remaining sub-sections of section 21. He chose not to do
so and this Court is, therefore, left with no alternative but to
uphold the defendant's special plea and to dismiss the plaintiff's
claim with costs.