President Insurance Company Ltd. v Retsos (116/87) [1987] ZASCA 113; [1988] 1 All SA 344 (A) (29 September 1987)

President Insurance Company Ltd. v Retsos (116/87) [1987] ZASCA 113; [1988] 1 All SA 344 (A) (29 September 1987)

The Supreme Court of Appeal held that the respondent failed to establish 'special circumstances' as required by section 24(2)(a)(ii) of the Compulsory Motor Vehicle Insurance Act. The omission to serve summons within the prescribed period was due to the neglect and omission of the legal secretary, Mrs Nadin, and the lack of supervision by the responsible attorney, Farber. The court found that such neglect and omission, even if influenced by personal hardship, cannot constitute 'special circumstances' within the meaning of the Act, as the legislature expressly excluded neglect, omission, or ignorance due to negligence. The responsibility for ensuring compliance with procedural requirements...

Citation
[1987] ZASCA 113
Parties
Appellant: President Insurance Company Limited; Respondent: Helen Retsos
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 1987
Case Number
116/87
Procedural Posture
Civil Appeal / Appeal From Order of Witwatersrand Local Division Granting Leave to Serve Summons Out of Time Under Section 24(2)(a)(ii) of the Compulsory Motor Vehicle Insurance Act.
Outcome
Appeal upheld. The order of the court a quo is set aside and replaced with an order dismissing the application with costs.
Judges
Rabie, Corbett, Botha, Nestadt, Boshoff
Legal Topics
Compulsory Motor Vehicle Insurance Act, Prescription of Claims, Special Circumstances, Attorney Negligence
Civil Procedure Insurance Law Compulsory Motor Vehicle Insurance Act Prescription of Claims Special Circumstances Attorney Negligence

Case Brief

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Parties

President Insurance Company Limited

Appellant

Helen Retsos

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Witwatersrand Local Division Granting Leave to Serve Summons Out of Time Under Section 24(2)(a)(ii) of the Compulsory Motor Vehicle Insurance Act.

Legal Issues

  1. 1 Whether the respondent established 'special circumstances' under section 24(2)(a)(ii) of the Compulsory Motor Vehicle Insurance Act to justify relief from prescription.
  2. 2 Whether the neglect and omission by the legal secretary and lack of supervision by the attorney constitute 'special circumstances' as contemplated by the Act.
  3. 3 Whether the court a quo erred in granting leave to serve summons after the claim had prescribed.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent failed to establish 'special circumstances' as required by section 24(2)(a)(ii) of the Compulsory Motor Vehicle Insurance Act. The omission to serve summons within the prescribed period was due to the neglect and omission of the legal secretary, Mrs Nadin, and the lack of supervision by the responsible attorney, Farber. The court found that such neglect and omission, even if influenced by personal hardship, cannot constitute 'special circumstances' within the meaning of the Act, as the legislature expressly excluded neglect, omission, or ignorance due to negligence. The responsibility for ensuring compliance with procedural requirements...

Court Disposition

Appeal upheld. The order of the court a quo is set aside and replaced with an order dismissing the application with costs.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo is deleted and substituted with 'Application dismissed with costs.'