IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number :  518/98
In the matter between :
ROAD ACCIDENT FUND
Appellant
and
R E MOTHUPI
Respondent
CORAM :
NIENABER, MARAIS, OLIVIER, PLEWMAN
JJA and  FARLAM  AJA
HEARD :
15 MAY 2000
DELIVERED :
29 MAY 2000
_________________________________________________________
______
JUDGMENT
Third Party claim - insurer invokes prescription - plaintiff’s response, based on
the insurer’s concession of the negligence of the insured driver, fourfold: (i)
implied waiver; (ii) estoppel; (iii) interruption; (iv) constitutional unfairness.
_________________________________________________________

_______
NIENABER  JA/
NIENABER JA :
[1] On 3 August 1991 the respondent, plaintiff in the court below, was a
passenger in a motor vehicle.  The vehicle was involved in a collision with
another vehicle.  She was severely injured.  So were some of the other
passengers.  Two years later, on 3 August 1993, her attorneys lodged a claim
form on her behalf against the then appointed statutory third party insurer of the
other vehicle involved in the accident, Santam Insurance Company (“Santam”).
Five and a half years after the collision, during February 1997, summons was
served on the present defendant, now the appellant (“the Fund”), the statutory
successor to Santam.  The prescriptive period relevant to this claim is five years
calculated from the date upon which the claim arose (art 57 of the agreement
which forms a schedule to the Multilateral Motor Vehicle Accidents Fund Act
93 of 1989 (“the Act”)).   The sole issue in these proceedings is whether the

plaintiff’s claim, admittedly out of time, had nevertheless not prescribed.  The
court below, MacArthur J sitting in the Transvaal Provincial Division, held that
the Fund had impliedly waived reliance on prescription and accordingly
dismissed its special plea of prescription with costs.  This is an appeal, leave
having been refused by the court a quo but granted to the Fund on petition,
against that order.
[2] Articles 55 and 57 of the schedule referred to earlier must be read
conjointly.
“What arts 55 and 57 in effect state, is that such a claim becomes
prescribed within three years;  prescription is ‘interrupted’ by the
lodging of a claim in terms of art 62;  if interrupted, the claim shall
not become prescribed before the expiry of a period of five years
from the date on which the claim arose.”
( Mbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713
(SCA)
720D-E.)  This was not the position as at the time of the collision.  As the Act

then stood the claim form had to be lodged within two years (not three) and the
claim would only prescribe 90 days after the statutory third party insurer had
either formally repudiated the claim or made an offer of settlement by registered
post.  Even if a claimant had failed either to lodge his or her claim within the
two year period or sue within the 90 days period, he or she could still apply for
condonation if there were “special circumstances” which rendered it not
unreasonable for  the claimant not to have lodged or sued  within the prescribed
periods (art 57 prior to the amendment of the Act).   The Act was amended by
Proclamation 102 of 1991 with effect from 1  November 1991, which was after
the collision but before the action was eventually instituted.  In accordance with
Swanepoel v Johannesburg City Council, President Insurance Co Ltd v
Kruger 1994 (3) SA 789 (A) the amended provisions apply to the plaintiff’s
claim.   In terms of the amended provisions a claimant was granted a more
generous period of five years within which to sue - provided that the claim form

had otherwise been lodged within the three year period - but on the other hand
art 58 which previously allowed for condonation on account of “special
circumstances” was  repealed.  The clear legislative implication is that a claimant
who failed to proceed regularly within the five year period would no longer be
able to approach a court for condonation even if the circumstances were
special (Swanepoel’s case, 796B-F).
[3] The Fund pleaded prescription and the plaintiff replicated
“that the invocation by the Defendant of Article 57 constitutes an
invasion of her constitutional rights enshrined in Sections 33,
alternatively 34 of the Constitution of South Africa Act 1996 (Act
108 of 1996)”.
In the alternative it was pleaded that the Fund had “waived any right to rely
upon the provisions of the said Article 57".
[4] At a pretrial conference it was agreed that only two issues would be
submitted to the court to be disposed of in advance, namely:

“5.1
Of die Verweerder se beroep op verjaring grondwetlik is;
en
5.2 Of Verweerder afstand gedoen het van die reg om hom op
verjaring  te beroep.”
It was also agreed that the plaintiff accepted the onus in respect of both issues.
[5] The court a quo thereupon made an appropriate order in terms of Rule
33(4) of the Rules of Court and, having heard evidence, it upheld the plaintiff’s
contention that the Fund had impliedly waived reliance on a defence of
prescription.  The constitutional issue was accordingly not considered.
[6] At the hearing of the appeal the plaintiff sought to broaden her responses
to the special plea of prescription by substituting an amended replication in
which a further alternative of estoppel was introduced.  The application for the
amendment was opposed by the Fund on the grounds inter alia that it ignored
the terms of the pretrial agreement and opened up factual issues not pertinently
or adequately explored in the evidence.  I shall return to the terms of the

amendment later in this judgment when dealing with the issue of estoppel.
[7] The main witnesses for the plaintiff were her attorneys, Mr and Mrs
Mahlase, practising in partnership in Pietersburg under the name Mahlase,
Nonyane-Mahlase (“MNM”).  MNM submitted the plaintiff’s claim to Santam.
Santam was the “appointed agent” in terms of the Act dealing with the third
party claims arising from the collision in which the plaintiff was injured.  The
official to whom the file was allocated was a certain Mr Van Schalkwyk. He
handled the claim throughout, initially as an employee of Santam, latterly as an
employee and legal officer of the Fund.  He testified on behalf of the Fund.
[8] MNM experienced enormous practical difficulties in communicating with
the plaintiff and hence in processing her claim.  The plaintiff lived in a remote
area of the Northern Province and moved about amongst her relatives.  Mrs
Mahlase, asked to explain some of the delays in MNM’s response to letters
addressed to it by Van Schalkwyk, testified as follows:

“Can you tell the court what the reason was for that? -- The
plaintiff lives in a certain village next to Ellisras and it is quite a
distance travelling there and there is no other means of
communication.  There are no telephones, they do not have
postboxes where you can perhaps write a letter to say come to the
office or whatever or I will be coming to your place.  The only
way of seeing the client was to drive to client’s place.  And
sometimes ...(intervene)
COURT :   And this is near Ellisras you say? -- It is near Ellisras
and we are in Pietersburg.  And sometimes when you get there
you find that the client is not there, maybe she has gone to some
of the relatives to ask for money, food for herself and her child.
So I had to leave a message to say, please, should she come tell
her to stay put until I come.  It used to happen that sometimes
when we drive there for the second time they tell us, no she has
not yet arrived.  So we have to go back like that.  Sometimes
when we make appointments with the doctors, for instance Dr
Ledwaba, we go there to fetch client, the plaintiff, we find that she
is not there, we have to cancel the appointment again.  And those
were the causes of the delays.”
[9] The merits of the plaintiff’s claim, that is to say, the negligence of the
driver of the insured vehicle, one Petrus Lekgwabe (also referred to as “the
insured driver”), was not seriously in dispute.  Van Schalkwyk never requested

specific information about the circumstances of the collision although he did
requisition the record of the criminal trial against Lekgwabe, who was convicted
of culpable homicide.  On no less than six separate occasions, although not
requiring the Fund formally to concede the so-called merits, MNM pointedly
demanded that it should state what “the Fund’s attitude was” to the plaintiff’s
claim. Van Schalkwyk, in his response, invariably deflected the inquiry by
asking for further information relating to the quantification of the plaintiff’s
claim although it was never suggested that any of his queries addressed to
MNM were either irrelevant or deliberately contrived to cause the plaintiff to
delay instituting action.   Counsel for the Fund made much of the point that the
merits had never formally or expressly been conceded by the Fund.  Even so
it is, I think, fair to say that the Fund was never intent on contesting the claim
on the ground that Lekgwabe was not negligent.  Van Schalkwyk under cross-
examination conceded as much.  He said:

“En sal u met my saamstem dat dit die indruk kon geskep het dat
u, wat betref die meriete van die aangeleentheid, die nalatigheid aan
enige van die kante toegegee het? -- Dit kon dalk die indruk skep
dat, by die prokureur wat die eis ingedien het, dat die meriete nie
meer in dispuut is nie.  Alhoewel op daardie stadium was dit nog
nie formeel toegegee nie.”
Ultimately, in its plea over on the merits, Lekgwabe’s negligence was expressly
conceded by the Fund.  But of course that was not the end of the matter since
the inquiry is not whether the Fund waived a defence on the merits; it is whether
the Fund waived a potential defence of prescription.  I  return to this issue in
greater detail later in this judgment.
[10] According to Van Schalkwyk his mind was not specifically attuned to
prescription. He dealt with close to a thousand different matters at any one time,
so he explained, and the prescriptive periods in respect of each of these matters
were never diarised by him in the portfolio of claims which he administered.  He
dealt with each matter only when it was necessary to do so, on receipt of a

communication from claimants or their legal representatives.  His attitude, as he
explained under cross-examination, was as follows:
“Maar u het op geen stadium dit pertinent gemeld aan die eiseres
se prokureurs dat hulle moet nou ’n dagvaarding uitreik en beteken
aangesien die eis gaan verjaar nie? -- Dit is korrek, omdat ek, soos
ek reeds ook vantevore gesê het, ons geen sorgplig of regsplig
daartoe het nie.”
Delay with a view to allowing prescription to run was never a consideration with
him.  Indeed, his exchanges with MNM show that he repeatedly urged them to
treat the matter as urgent.  He was asked about this and stated as follows:
“Wat, wat was die rede vir die gebruik van die woord “urgent”? --
U edele ek ervaar daagliks dat, u moet verstaan ek wil ook graag
’n eis afhandel so gou as moontlik, want dit strek vir beide partye
tot voordeel.  En ek gebruik dit maar deurgaans om vir die
prokureurs net ’n aanduiding te gee ek sal graag wil dringend
terugvoering hê sodat ek kan die volgende stap neem om die eis
te finaliseer.  Of af te handel óf te evalueer.”
[11] On 4 March 1996, more than four months before the claim would
prescribe, Van Schalkwyk sent a fax to MNM which read as follows:

“We discussed the quantum of your client’s claim with our own
actuary, Mr Marais, who informed us that we must obtain from
you full details of the state disability grant that your client is
receiving to enable us to calculate your client’s loss of income.
We await your urgent response.”
Such a request, he stated, was standard procedure since grants so paid had to
be deducted from any amounts awarded to claimants.  On 9 March 1996
MNM, without referring to this fax, wrote to Van Schalkwyk complaining of a
perceived lack of communication from him.  The letter proceeded:
“We have also written letters asking yourself of your attitude
towards our client’s claim.
We have furnished all the relevant information in regard to our
client’s claim with no response from you.  Your office has not
reacted to our client’s claim, and have not even acknowledged
receipt of our letters or documentation/information as requested
by yourself.
Should we receive no response within 7 days of date of this letter,
we shall proceed by way of summons as it is our legal right to do
so.
Kindly attend to this letter with the professional courtesy it
deserves.”

On 25 March 1996 Van Schalkwyk wrote:
“Please note that we tried at numerous occasions to make contact
with your office by way of telephone as well as fax.  We later
realised that your dialling code as given on your letterhead is
incorrect.  We then tried a couple of times the correct dialling
code, but still could not get through to you as there seems to be
a sort of technical problem with the lines to Pietersburg.
Attached please find a copy of our fax dated 4 March 1996 which
we tried to fax through to you.
We await your response to the contents of this fax to enable us to
fully quantify your client’s claim.
We await your urgent response.”
On 3 April 1996 MNM wrote:
“We refer to telephone conversation between our Mr Mahlase and
your Mr Van Schalkwyk on the 3  April 1996.
rd
Our client has applied for a Disability Grant.  She has however
been unsuccessful in her application and has received no
compensation at all.
Kindly quantify our client’s claim as soon as possible.”
On 16 April 1996 Van Schalkwyk replied:
“We also wish to refer to the telephonic conversation which took
place on 3 April 1996 when our Mr. Van Schalkwyk requested

from you copies of your letters where you applied for a disability
grant on behalf of your client.  We also would like to receive
copies of the response received from the applicable state
department.
We now await your response to enable us to quantify your client’s
claim.”
This happened to be the last of the exchanges between Van Schalkwyk and
MNM before prescription supervened on 2 August 1996.  It was only on 18
September 1996, well after that date, that MNM replied by fax in conciliatory
terms as follows:
“We refer to the above matter as well as our telecon with the good
and kind Mr Van Schalkwyk of Santam.
We are pleased as agreed to send you the final document in this
matter which is necessary for your goodselves to quantify our
client’s claim and finalise the matter.
We really thank you for exercising patience as we had serious
difficulty in obtaining the  said document.”
Enclosed was a document dated 16 September 1996 which stated as follows:
“This is to certify that Mothupi R Elizabeth is receiving disability
grant amounting R430,00.  Her pension became effective from

March 1995.”
[12] The reasons for the delay in furnishing the required information about the
disability grant was a matter for debate in the court below.  According to Mrs
Mahlase the information was not only time consuming to obtain but was
sometimes contradictory.   A witness, Mr Mohale, a welfare official in the
employ of the Department of Health and Welfare of the Northern Province,
eventually testified (contrary to the document of 16 September 1996) that the
plaintiff received a disability grant only from February 1997 to February 1998
when further payment was suspended for lack of funds.  Mrs Mahlase’s
evidence about the industry with which she pursued these inquiries, was in
dispute.  The court a quo, while expressing reservations about MNM’s
diligence in general, did not find it necessary to resolve the dispute.  Whatever
the true position may be, she never communicated her difficulties to Van
Schalkwyk and it was never said by her or suggested to him in cross-

examination that she  asked for  more time within which to submit the required
information.  The upshot was that the date of prescription passed without either
of the parties apparently appreciating its significance.
[13] On receipt of MNM’s last fax Van Schalkwyk, when he  drew the file,
realised that the claim had in the meantime prescribed.  He immediately notified
MNM accordingly by fax and this led to further exchanges between the parties
culminating in the institution of action during February 1997.
[14] Against that factual background I turn to the plaintiff’s various responses
to the defendant’s special plea of prescription.  Since the court a quo found the
waiver issue to be decisive of the whole matter I propose to commence at that
point.
[15] INFERRED WAIVER:
Waiver is first and foremost a matter of intention.  Whether it is the waiver of
a right or a remedy, a privilege or power, an interest or benefit, and whether in

unilateral or bilateral form, the starting point invariably is the will of the party
said to have waived it.  The right in question in the instant case is the statutory
provision specifically accorded to the Fund to avert claims which are out of
time.
“It is a well-established principle of our law that a statutory
provision enacted for the special benefit of any individual or body
may be waived by that individual or body, provided that no public
interests are involved.  It makes no difference that the provision is
couched in peremptory terms.”
(SA Eagle Insurance Co Ltd v Bavuma 1985 (3) SA 42 (A) 49G-H.)
[16] The test to determine  intention to waive has been said to be objective (cf
Palmer v Poulter 1983 (4) SA 11 (T) 20C-21A; Multilateral Motor Vehicle
Accidents Fund v Meyerowitz 1995 (1) SA 23 (C) 26H-27G; Bekazaku
Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd 1996 (2) SA 537 (C)
543A-544D).  That means, first, that intention to waive, like intention generally,
is adjudged by its outward manifestations (cf Traub v Barclays National Bank

Ltd 1983 (3) SA 619 (A) 634H-635D; Botha (now Griessel) and Another v
Finanscredit (Pty) Ltd 1989 (3) SA 773 (A) 792B-E); secondly, that mental
reservations, not communicated, are of no legal consequence (Mutual Life
Insurance Co of New York v Ingle 1910 TS 540, 550);  and thirdly, that the
outward manifestations of intention are adjudged from the perspective of the
other party concerned, that is to say, from the perspective of the latter’s
notional alter ego, the reasonable person standing in his shoes.
[17] The third aspect has not yet been finally settled by this court, or so it
would seem (cf Thomas v Henry and Another 1985 (3) SA 889 (A) 896G-
898C).  What the one party now says he then intended and what his opposite
number now says he then believed, may still be relevant (Thomas v Henry and
Another, supra, 898A-C) although not necessarily conclusive.  The knowledge
and appreciation of the party alleged to have waived is furthermore an axiomatic
aspect of waiver (Martin v De Kock 1948 (2) SA 719 (A) 732-733).  With those

two qualifications I propose, in this judgment,  to apply the test of the notional
alter ego.
[18] The outward manifestations can consist of words;  of some other form
of conduct from which the intention to waive is inferred; or even of inaction or
silence where a duty to act or speak exists.   A complication may arise where
a person’s outward manifestations of intention are intrinsically contradictory,
as for instance where one telefax indicates an intention to waive and another,
perhaps as a result of a typographical error, does not.   That problem does not
arise in this case and consequently need not  be discussed (cf Mahabeer v
Sharma NO and Another 1985 (3) SA 729 (A) 737D-E).  Nor is it necessary
to consider some of the other problems relating to waiver which do not arise
in this case, such as whether the manifestation of an intention to waive must of
necessity be communicated to the other side, and, if so, whether by some
means or another it must always be “accepted” or acted upon by the other

party (cf Traub v Barclays National Bank Ltd, supra, 634H; Botha (now
Griessel) v Finanscredit (Pty) Ltd, supra, 792B-E;   Segal and Another v
Segil 1992 (3) SA 136 (C) 144J-146J; 155B-156J;  Southern Witwatersrand
Exploration Co Ltd v Bisichi Mining Plc and others 1997 (3) All SA 691 (W)
700c-702d).
[19] Because no one is presumed to waive his rights (cf Ellis and Others v
Laubscher 1956 (4) SA 692 (A) 702E-F), one, the onus is on the party alleging
it and, two, clear proof is required of an intention to do so (Hepner v
Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A) 778D-9A;
Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A) 704F-H).  The
conduct from which waiver is inferred, so it has frequently been stated, must
be unequivocal, that is to say, consistent with no other hypothesis.
[20] In the instant case it is common cause that the Fund did not in express
terms  notify MNM in advance that it would not rely on prescription.  The

dispute between the parties is whether it did so by conduct.  The issue, then,
is whether the Fund’s conduct was consistent only with an intention not to raise
or rely on prescription should the occasion for doing so otherwise arise.
[21] The court a quo in finding an implied waiver reasoned as follows:
“The test to be applied as appears from these cases is the
objective one and once it is said by a senior and experienced
official who was responsible for handling the claim that the
impression could have been created that the merits had been
conceded I am of the view that waiver has been established.  The
fact that Van Schalkwyk had reservations which he kept to himself
is irrelevant and it cannot lie in the mouth of the defendant that
Van Schalkwyk was not a reasonable man.  That view is
reinforced by the fact that the defendant in its plea conceded the
merits of the case.  In the circumstances I think the attorneys were
entitled to accept that the defendant had waived its right to rely on
prescription and to act on that assumption.  Once the merits had
been conceded and prescription waived this would in the
circumstances of this case apply to the whole claim ie both merits
and quantum.”
[22] The reasoning, in its stark form, amounts to this: because negligence has
not been contested  therefore prescription has been waived.  Perhaps the

thinking may be bolstered by restating it in a somewhat more elaborate form,
as follows:  (a) The Fund, through Van Schalkwyk, conceded negligence on the
part of the driver of the other vehicle.  (b)  By conceding such negligence the
Fund in effect intimated to the plaintiff that it would assume liability for at least
some compensation to be paid by the Fund to the plaintiff, ergo, that its only
resistance to the plaintiff's claim was as to the amount payable.  (c)  The
correspondence shows that Van Schalkwyk eventually proposed to make an
offer to MNM and that the overwhelming likelihood was that the matter would
eventually settle, ergo, that there would be no need for the Fund to raise
prescription.  (d)  Hence it would have been reasonable for the plaintiff (or for
someone in her position) to conclude that the Fund would not eventually, or at
least not for as long as the parties were engaged in negotiation, resist the claim
on the grounds of prescription.
[23] The argument, even in its amplified form, remains unconvincing.

Conclusion (d) simply does not follow from premise (a).  By not disputing
negligence the Fund did not concede liability in toto.  MNM  never intimated in
advance that the plaintiff would accept whatever quantification the Fund
proposed.  The possibility of litigation could therefore not be excluded, even
if the merits, so called, were no longer in dispute. Neither side ever mentioned
a concrete figure to the other.  The quantification of the claim  therefore
remained wide open.  A waiver of prescription would mean that the Fund, as
debtor, bound itself in advance never to raise prescription against the plaintiff
even if the quantum was not settled.   By not actively disputing the merits Van
Schalkwyk at most conveyed the impression that the defendant was not going
to rely on the defence that the insured driver was not negligent;  non constat
that it could reasonably be understood to have conveyed the notion that the
Fund abandoned any other defences that may have been open to it should the
parties not have reached a satisfactory settlement.  Nothing Van Schalkwyk did

could reasonably have led MNM (or the plaintiff or someone in her shoes), to
believe that prescription was present to the mind of Van Schalkwyk at the time.
The correspondence makes it clear that neither side gave prescription a thought.
Nothing Van Schalkwyk did could therefore have led the plaintiff (or her
notional alter ego) to believe that the statutory right which was given to the
Fund for that very eventuality would not be relied upon by it should the
occasion for doing so arise.   Absent a “sorgplig”, as Van Schalkwyk testified,
an assertion  not challenged on behalf of the plaintiff, no duty  rested upon him
or the Fund to alert MNM to the perils of prescription.  Moreover, the plaintiff
failed, indeed, did not even begin to prove that “information sought by the
Defendant could not be obtained prior to 2rd August 1996", which was one of
the principal allegations pleaded by her in support of her reliance on waiver.
And finally, any doubt as to how Van Schalkwyk’s actions were to be
interpreted must be resolved against the plaintiff who bears the onus to prove

waiver.
[24] The actions of Van Schalkwyk were plainly not calculated to lull the
plaintiff into a false sense of security that the option of raising prescription (if
it should supervene) had been ruled out by the Fund; rather, it was designed to
bring matters to a head as far as the claim was concerned.  That was his
evidence and it was never suggested to Van Schalkwyk that he schemed  to
wrong-foot the plaintiff or her attorneys.  In my view Van Schalkwyk’s
conduct, in not actively disputing the negligence of the insured driver and in
actively taking steps to quantify the claim, was an entirely neutral factor.  It did
not provide any indication as to whether it was the intention of the Fund to
waive or not to waive prescription.  His conduct would have been the same
even if he or the Fund was mindful of prescription at the time.  In short, his
conduct was consistent with the hypothesis that he was simply doing his job;
it was not inconsistent with the hypothesis that prescription might yet be raised

if circumstances so required.   The response of implied waiver, more accurately
described as tacit or inferred waiver, accordingly cannot succeed.
[25] ESTOPPEL:
I turn to the issue of estoppel.  This response to the defendant’s plea of
prescription is contained in a proposed amendment to the plaintiff’s replication.
The amendment was moved at the time of the hearing of the appeal.  It reads
as follows:
“2.A.
Further alternatively, the plaintiff pleads that the defendant is
estopped from relying on the prescription provisions of Article 57
of the Act by virtue of the following:
(a)
Through the conduct of its appointed agent and/or servants
including Mr Van Schalkwyk, the defendant represented, by
words alternatively by conduct to the plaintiff and/or the
plaintiff’s attorneys, that the question of its liability for the
plaintiff’s claim was not disputed and that only the quantum
of her claim still needed to be finalized;
(b)
The defendant similarly also represented to the plaintiff
and/or her attorneys that, while negotiations and
communications were continuing between it and the

plaintiff’s attorneys in regard to the issue of quantum, it
would not rely on prescription despite the passing of the
prescription date of the claim in terms of Articles 57 of the
Act;
(c)
Accepting and relying upon such representations, the
plaintiff’s attorneys continued with bona fide settlement
negotiations and communications in order to finalize the
quantum of the claim, and did nothing to interrupt
prescription by the issue of summons on or before the
prescription date of 3 August 1991;
(d)
In so acting, the plaintiff’s attorneys did so to the prejudice
and detriment of the plaintiff;
(e)
In the premises, the defendant is estopped from relying
upon the said Article 57.”
[26] There are, in the main, two reasons why the amendment should in my
opinion not be granted.   The first is that, even if granted, it would still not
rescue the plaintiff’s cause.  I return to this point in par 29 below.  The second
is that one cannot be confident that, if pleaded initially, it would not have had
some bearing on the course of the trial - in the sense of relevant matter not
being explored in cross-examination nor led in evidence.  To allow the

amendment in those circumstances would be unfair to the defendant.  I return
to this point in par 30 below.  And if the amendment is not to be granted on
either of those grounds it is not necessary to consider a third  reason i.e.
whether the agreement concluded between the parties at the pretrial conference,
in the absence of a further agreement between them, precluded the introduction
of new matter and a new issue.
[27] The “estoppel response” presupposes that actual intention to waive (in
the sense discussed in par 16 above) has not been established by the plaintiff.
The question then is whether the Fund, not intending to waive, nevertheless
created the impression that it intended to do so, on the strength of which the
plaintiff acted to her prejudice in not issuing summons before the expiry of the
date upon which the claim would otherwise have prescribed (cf Aris
Enterprises (Finance) (Pty) Ltd v Protea Insurance Co Ltd 1981 (3) SA 275
(A) 291D-E).

[28] The very first requirement for estoppel by representation is a
representation made by the party against whom the estoppel is raised.  The
representation pleaded in the amendment is that contained in par (b). There is
this difference between the response of waiver pleaded by the plaintiff and the
further response of estoppel introduced in the amendment.  On the basis of the
waiver response the Fund would never thereafter be permitted to plead
prescription, even if the matter did not settle and litigation ensued on the
quantification of the claim; on the estoppel response the Fund would be
precluded from relying on prescription while, and only for as long as,
“negotiations and communications were continuing between it and the plaintiff’s
attorneys in regard to the issue of quantum”.  It was no doubt for that reason
that counsel for the plaintiff, during argument, was disposed to favour the
estoppel response above the waiver response.  What was perhaps overlooked
is that this formulation comes perilously close to an assertion that the parties by

tacit agreement extended the time for instituting action - an allegation that was
neither made nor proved.
[29] The test for inferred waiver, as stated earlier in par 16, is the impression
created by the conduct of the Fund on the mind of the plaintiff’s notional alter
ego; that, as it happens, is also, in the context of estoppel, the test for a
representation (Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co
Ltd, supra, 292E-F; Rabie, The Law of Estoppel in South Africa, 37).   Having
earlier found that the conduct of Van Schalkwyk was not capable of creating
the reasonable impression that the Fund meant to waive prescription in
perpetuity, it seems to me that by the same token and for substantially the same
reasons it is not capable of creating the reasonable impression that prescription
will not be invoked pending finalisation of the quantum by negotiation.  In itself
that is a sufficient reason for refusing the amendment.  But as stated earlier there
is a second equally potent reason for doing so.

[30] Subject to what is said below, a court will not allow a new point to be
raised for the first time on appeal unless it was covered by the pleadings.  The
application for the amendment of the replication was designed to circumvent
that difficulty; but in essence the amendment is simply the platform from which
the plaintiff sought to launch the new point on appeal.  A party will not be
permitted  to do so if it would be unfair to his opponent  (cf Paddock Motors
(Pty) Ltd v Igesund 1976 (3) SA 16 (A) 23D-H; Bank of Lisbon and South
Africa Ltd v The Master and Others 1987 (1) SA 276 (A) 290E-H).  It would
be unfair to the other party if the new point was not fully canvassed or
investigated at the trial.  In this case it is by no means certain that the issue of
estoppel in all its ramifications was properly and fully investigated.  So for
instance there was no evidence by and no cross-examination of Mr and Mrs
Mahlase on whether they ever thought of prescription at the time and on
whether they would have acted differently if they were attentive to it;  nor was

there any explanation offered as to why summons was only issued in February
1997, whereas  negotiations about the quantification came to an abrupt end in
September 1996.  In the result it appears to me that the proposed amendment
opened up entirely new fields of enquiry which were not properly explored
before the trial court.  The amendment must accordingly be refused.  And if
that is so estoppel falls by the wayside.
[31] INTERRUPTION OF PRESCRIPTION :
During the course of argument counsel for the plaintiff raised a completely new
response to the defence of prescription, foreshadowed in neither the pleadings
nor his heads of argument.  It was that Van Schalkwyk’s conduct (in not
disputing the merits and in pressing for further information in order to quantify
the plaintiff’s claim, thereby inducing MNM to believe that the matter was
certain to settle) amounted to an acknowledgment of liability by the Fund for
the purpose of s 14 of the Prescription Act 68 of 1969.  The section reads as

follows:
“14.
Interruption of prescription by acknowledgement of
liability. -
(1)
The running of prescription shall be interrupted by
an express or tacit acknowledgment of liability by the
debtor.
(2)
If the running of prescription is interrupted as contemplated
in subsection (1), prescription  shall commence to run
afresh from the day on which the interruption takes place
or, if at the time of the interruption or at any time thereafter
the parties postpone the due date of the debt, from the date
upon which the debt again becomes due.”
[32] It has been held that the relevant provisions of the Prescription Act, to
the extent that they are not otherwise incompatible with the Act, apply to claims
processed under it (cf Road Accident Fund v Smith NO 1999 (1) SA 92 (SCA)
98F-G).
[33] Not having been pleaded the new point was presented in argument  as
one purely of law, apparent on the record, and in respect of which no
elaboration in evidence was possible;  consequently, so it was submitted, it

would involve no unfairness to the Fund if it were considered by this court  (cf
Paddock Motors (Pty) Ltd v Igesund, supra, 23D-H; Bank of Lisbon and
South Africa Ltd v The Master and Others, supra, 290E-H).  Counsel frankly
admitted  that the point only occurred to him when he read the recently reported
judgment of Solomons v Multilateral Motor Vehicle Accident Fund and
Another 1999 (4) SA 237 (C).
[34] Solomons, like the plaintiff in this case, was injured in a motor vehicle
collision.  A claim was duly lodged on his behalf whereupon the Fund expressly
acknowledged that the negligence of the insured driver was no longer in issue.
As in this case the Fund called for further information to consider the
quantification of the claim.  Within the time, well before prescription
supervened, the Fund made an offer, which it later substantially increased.  This
was in November 1996.  The plaintiff’s attorneys acknowledged the offer and
stated that they would take instructions from him.  They eventually wrote to the

Fund on 4 July 1997 that the offer, save for the scale of payment of costs, was
accepted by the plaintiff, only to be met by the response from the Fund that the
claim was repudiated because it had prescribed two days earlier on 2 July 1997.
[35] Three issues in that case, as in the present one, were whether the Fund
had waived reliance on prescription, whether it was estopped from raising
prescription and whether prescription had been interrupted by the Fund’s
concession of negligence on the part of the insured driver.  The court found in
favour of the plaintiff on the third of these issues, stating at 249C:
“It is my conclusion therefore that the Fund’s admission of
liability in respect of negligence (the merits) did indeed have the
effect of interrupting prescription, so that the plaintiff’s claim had
not become prescribed by the time that the offer was accepted.”
It was on this dictum, as a proposition of law, that the plaintiff in the present
case relied for her submission that prescription had been interrupted by the
Fund’s tacit concession of negligence on the part of the insured driver.

[36] I am afraid that I cannot agree, with respect, that the dictum represents
an accurate and self-sufficient statement of the law on the point.   I am prepared
to accept in favour of the plaintiff, without deciding, that the Fund’s passivity
in regard to the negligence of the insured driver in the present case can be
equated with an express acknowledgment of liability in respect of the merits, in
the sense in which the expression is used in Solomons’ case.  That then
pertinently poses the question whether an acknowledgment to that effect can in
turn be equated, as a matter of law, with a tacit acknowledgment of liability by
the debtor for the purpose of s 14 quoted in par 31.
[37] For a variety of reasons the question posed must in my opinion be
answered in the negative.  In the first place an acknowledgment of liability for
the purpose of s 14 of the Prescription Act is a matter of fact, not a matter of
law.  Thus it was stated in Agnew v Union and South West Africa Insurance
Co Ltd 1977 (1) SA 617 (A) at  623A-B:

“Of daar in ’n bepaalde geval ’n erkenning van aanspreeklikheid
was, is ’n feitlike vraag wat betrekking het op die bedoeling van
die persoon wat as skuldenaar aangespreek is.  In dié verband het
BROOME, R.P., die volgende gesê in Petzer v. Radford (Pty.)
Ltd., 1953 (4) S.A. 314 (N) op bl. 317 en 318:
‘To interrupt prescription an acknowledgment by the debtor
must amount to an admission that the debt is in existence and that
he is liable therefor.’ ”
It is by no means inconceivable that in a particular case the Fund may be
disposed, either because of difficulties of proof or because the amount in issue
is not substantial, not to contest negligence, without necessarily admitting or
conceding that the insured driver was in fact wholly or partly to blame for the
collision.
[38] Secondly, and more importantly, the dictum, presented as a statement of
law, is against the tenor of authority.  It is inconsistent with Benson and
Another v Walters and Others 1984 (1) SA 73 (A) to which no reference was
made in the judgment.  That case expressly approved the dictum from Petzer

v Radford (Pty) Ltd, quoted in the passage cited above.  It was also approved
in the earlier case of Markham v South African Finance & Industrial Co Ltd
1962 (3) SA 669 (A) at 676E-F.  The debt in question is the payment of an
amount of compensation to an injured party in accordance with the provisions
of the Act.  An acknowledgement of negligence on the part of the insured
driver, coupled with a willingness to seek a settlement of the quantum if such
can be reached, is not an acknowledgment of the existence of a debt or of a
present liability (cf Markham’s case, supra, at 676F;  Benson and Another v
Walters and Others, supra, at 87C-D); at most it is an acknowledgment of a
potential liability if certain conditions are fulfilled (a settlement of the
quantum), failing which litigation would have to follow.  In Benson’s case,
supra, the majority of the court at 86H put it on the footing that the Act
“requires an acknowledgment of liability (‘aanspreeklikheid’) and not merely an
acknowledgment of indebtedness”.  And in the minority judgment, in that case,

it is further stated at 90G:
“For an acknowledgment of the debt to be effective as an
interruption of prescription it is not necessary that it should be
quantified in figures.  It is sufficient if it is capable of
ascertainment by calculation or extrinsic evidence without the
further agreement of the parties”.
In this case there is not even common ground on a minimum amount which is
acknowledged by the Fund.  The admission, in short, must cover at least every
element of the debt and exclude any defence as to its existence.  An admission
relating solely to the negligence of the insured driver does not comply with that
requirement.
[39] And finally there is the point raised in Cape Town Municipality v Allie
NO 1981 (2) SA 1 (C) 7F-G:
“In the end, of course, one must be able to say when the
acknowledgment of liability was made, or otherwise it would not
be possible to say from what day prescription commenced to run
afresh.”

This links up with what was earlier stated in Benson’s case, supra, at 86E:
“No doubt an alleged, but ambiguous, ‘acknowledgment’ may fall
to be interpreted in the light of preceding conduct of the debtor,
but, since interruption takes place at a specific point in time, I have
some difficulty in understanding how various factors can
cumulatively amount to a single act of interruption.”
On the facts of this case, where the alleged concession as to negligence  does
not consist of a single act but of an impression due to inaction over a
prolonged period, it is even more difficult to conceive how the requirement of
s 14 can be said to have been fulfilled.
[40] In the result I am of the view that the dictum in Solomons’ case is too
widely stated and does not, as a proposition of law, lend the support to the
plaintiff which her counsel sought to derive from it.
[41] THE CONSTITUTIONAL ISSUE:
The plaintiff sought refuge in s 33 alternatively s 34 of the Constitution of South
Africa, 108 of 1996 (cf Fedsure Life Assurance and Others Ltd v Greater

Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA
374 (CC) paras 112-115).  Section 33 (read in the light of item 23(2)(b) of
Schedule 6 of the Constitution)  requires “administrative action” that is lawful
and procedurally fair and s 34, as its heading states, deals with “Access to
courts”.
[42] Notwithstanding its formulation in the replication the plaintiff’s complaint
was not that art 57 of the Act was unconstitutional as such (cf Mohlomi v
Minister of Defence 1997 (1) SA 124 (CC)) or that the plaintiff was denied
access to the courts, but that the Fund acted unconstitutionally in relying on the
section.  The Fund was accused of unfair administrative action.  The accusation
was formulated as follows in par 9 of the respondent’s heads of argument:
“... the actions of the appellant in invoking and relying upon
prescription in view of the conduct of Van Schalkwyk in lulling
the respondent’s attorneys into a false sense of security
concerning any risk of prescription, amounted to opportunistic,
unconscionable and unfair administrative action on the part of the

representatives of the Fund”
and again, in par 55 thereof,
“The appellant’s invocation of article 57 constituted a deliberate
act designed to deprive the respondent of compensation”.
[43] In my opinion the factual foundation for these accusations, leaving aside
any legal objections, is entirely lacking.  The complaint that Van Schalkwyk’s
conduct prior to and leading up to the date of prescription was in any way
reprehensible is groundless.  If MNM was lulled into a false sense of security
it was due to its own misconception of the operation of the Act and not as a
result of anything Van Schalkwyk had said or done.  Moreover, the suggestion
that Van Schalkwyk acted improperly, diverting her attention in order to divest
the plaintiff of her claim, was never put to Van Schalkwyk under cross-
examination nor argued on appeal.  Van Schalkwyk acted  reasonably in asking
for more details relating to the disability grant;  nor was the timing of the request

unreasonable or designed to frustrate the plaintiff’s attempts to institute action
in time.  None of the plaintiff’s witnesses complained or objected that Van
Schalkwyk had misled or pressurised them in any way.  MNM did not ask for
more time within which to garner the required information.  Mr and Mrs
Mahlase did not testify that they were unaware of the new scheme of the Act
relating to prescription.  And nothing in the negotiations between the parties
could reasonably have induced them to believe that prescription was a
contentious issue between them and the Fund.  The plaintiff’s real complaint is
that the Fund invoked art 57.  The result was that settlement negotiations were
thereupon terminated and that the plaintiff was deprived of compensation to
which, but for art 57, she would have been entitled in terms of art 40 of the Act.
What the plaintiff in effect is saying is that the mere reliance on art 57 by the
Fund was unconstitutional.  But if the section itself was not unconstitutional I
fail to see how in the circumstances of this case its invocation can in any sense

be said to be unfair and therefore unconstitutional.  As stated earlier the
dilemma in which the plaintiff now finds herself resulted not from things done
by the Fund but from the things not done by MNM.
[44] Where the factual foundation for the constitutional response is lacking,
it is not necessary to consider various other difficulties standing in the way of
the plaintiff in deploying the Constitution as a rejoinder to the special plea of
prescription - such as for instance whether the Fund is an organ of state and
whether the invocation of a statutory defence can ever qualify as “administrative
action” within the meaning of s 33 of the Constitution.
[45] The following order is made:
1.
The appeal is allowed with costs.
2.
The order of the court a quo is amended to read:

“The special plea of prescription is upheld with
costs.”

...........................
P M NIENABER
JUDGE OF APPEAL
Concur :
Marais JA
Olivier JA
Plewman JA
Farlam AJA