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[2014] ZAGPJHC 212
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Dhladhla v Road Accident Fund (2013/09477) [2014] ZAGPJHC 212 (5 September 2014)
REPUBLIC
OF
SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2013/09477
DATE:
05 SEPTEMBER 2014
In the
matter between:
DHLADHLA,
MANDLA LANARK
...............................................
Plaintiff
And
THE
ROAD ACCIDENT
FUND
.................................................
Defendant
J U D G
M E N T
N F
KGOMO, J
:
INTRODUCTION
[1] The plaintiff instituted proceedings against the defendant for
damages arising out of injuries he sustained when he was a
passenger
in a motor vehicle owned and driven by his employer while being
driven along the N1 South, some 23 km outside the town
of Cradock in
the Eastern Cape Province on 15 March 2011.
[2]
The defendant defends the action.
[3]
In addition to pleading to the merits of the matter, the defendant
raised three special pleas. The first two special pleas
are in
respect of general damages, specifically the aspect of “
serious
injuries
” as contemplated in s 17
of the Road Accident Fund Act 1996 (Act 56 of 1996), as amended (“
the
RAF Act
”). The third special
plea, termed in the pleadings as the main Special plea, relates to s
19(a) of the Act relative to claims
where the Compensation of
Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993) as
amended (“
COIDA
”)
where injuries were sustained by a claimant in a motor vehicle owned
and driven by that claimant’s employer, are
in issue.
[4] These interlocutory proceedings relate to this “
main
”
special plea. The plaintiff is opposing the granting of the prayers
sought.
THE SPECIAL
PLEA
[5]
The defence raised in the special plea, which is dated 22 August
2014 and was supplemented in September 2014, is that the Road
Accident Fund (“
the Fund
”)
is not liable to the plaintiff for compensation in terms of s 17 of
the Act as amended, because:
5.1
In
terms of s 19(1) of the RAF Act the Fund is not liable to compensate
a third party in situations, as
in
casu
,
where neither the driver nor the owner of the motor vehicle concerned
would have been liable, but for s 21 of the Act;
5.2
S
21(1)(a) and (b) of the RAF Act provides that no claim for
compensation in respect of loss or damage resulting from bodily
injury
or the death of any person caused by or arising from the
driving of a motor vehicle shall lie against the owner or the driver
of
a motor vehicle or against the employer of the driver;
5.3
In
terms of s 35(1) of COIDA the plaintiff’s employer,
alternatively a person in management deemed to be an employer in
terms
of s 56(1)(b) of COIDA, being one Mr Anton Jardine in this
instance, being the driver whose negligence caused the accident,
would
not have been liable to the plaintiff.
[6] It deserves mention here that in terms of s 35(2) of COIDA, for
purposes of subsection (1) of s 35, a person referred to in
s
56(1)(b), (c), (d) and (e) shall be deemed to be an employer.
REASONS FOR
ALLOWING ARGUMENT OF THIS SPECIAL PLEA
[7] The special plea raises a point of law which can be conveniently
decided first, thus materially shortening the intended proceedings
at
the end of the day. That is allowed in terms of Rule 33(4) of the
Rules of Court.
[8] Initially the plaintiff objected to this procedure. However,
after carefully considering the facts, circumstances and the
law,
they consented or allowed this special plea to be argued.
AMENDMENT
OF THE SPECIAL PLEA
[9] The first amended special plea is dated 22 August 2014. This is
so, because according to the defendant, the plaintiff did
not
disclose in his particulars of claim that he (plaintiff) was injured
while acting within the course and scope of his employment;
and the
defendant came across that late.
[10] According to the defendant further, the second amendment or
amended special plea came about after the defendant’s
investigations further revealed that the driver of the motor vehicle
involved in the accident was in fact the employer of the plaintiff.
[11] After looking at all relevant facts and circumstances, I am
also persuaded and convinced that the special plea was necessitated
by the plaintiff’s non-disclosure of all the factual
circumstances that gave rise to the claim.
[12] In any event, the plaintiff is no longer objecting to the
admission to be part of the record or papers herein, of this special
plea.
THE COMMON
CAUSE FACTS
[13] The common cause facts here are that on 15 March 2011 the
plaintiff was a passenger in a vehicle driven by Mr Anton Jardine
(“
Jardine
”) travelling along the N1-freeway
southwards from Cradock on the way towards Port Elizabeth. The road
allows one lane in
each direction at the area where the accident
occurred. It was raining. Jardine – the driver – lost
control of the
motor vehicle and it hit the pavement and overturned,
resulting in the plaintiff’s injuries.
[14] At the time of the collision or accident, the plaintiff was
employed by the driver of the motor vehicle, i.e. Jardine.
THE LEGAL
FRAMEWORK
[15]
The
Road Accident Fund Act 1996
was amended by Amendment Act 19 of
2005 to comply with the Constitutional Court order issued in the case
of
Anele
Mvumvu, Louise Pedro & Bianca Smith v Minister of Transport and
The Road Accident Fund
[1]
.
[16] Section 19(a) of the Act as amended reads as follows:
“
19.
Liability excluded in certain cases.–
The Fund or an agent
shall not be obliged to compensate any person in terms of Section 17
for any loss or damage –
(a)
For
which neither the driver nor the owner of the motor vehicle concerned
would have been liable but for Section 21, …
”
[17] Section 21 of the Act reads as follows:
“
21.
Abolition of certain common law claims.–
(1)
No claim for compensation in respect of loss or damage resulting
from bodily injury to or death of any person caused or arising
from
the driving of a motor vehicle shall lie -
(a)
Against
the owner or driver of a motor vehicle; or
(b)
Against
the employer of the driver.
(2)
Subsection
(1) does not apply –
(a)
if
the Fund or an agent is unable to pay any compensation; or
(b)
to an action for compensation in respect of loss or damage resulting
from emotional shock sustained by a person, other than
a third party,
when that person witnessed or observed or was informed of the bodily
injury or the death of another person as a
result of the driving of a
motor vehicle …
”
[18]
This section (section 21) was brought in by s 9 of the Amendment
Act
[2]
with effect from 1 August 2008.
[19]
S 35(1) and (2) of the Compensation of Occupational Injuries and
Diseases Act
[3]
as amended (“
COIDA
”)
precludes an employee from recovering damages from his or her
employer in respect of an occupational injury. To put things
in their
proper perspective or context, I quote the subsection:
“
35(1)
No action shall lie by an employee or any dependant of an employee
for the recovery of damages in respect of any occupational
injury or
disease resulting in the disablement or death of such employees
against such employee, employer, and no liability for
compensation on
the part of such employer shall arise save under the provisions of
this Act in respect of such disablement or death.
(2)
For the purposes of sub-section (1) a person referred to in section
56(1)(b), (c), (d) and (e) shall be deemed to be an employer.
”
[20] S 56(1) and (2) of COIDA in turn reads as follows:
“
(1) If
an employee meets with an accident or contracts an occupational
disease which is due to the negligence –
(a)
of
his employer;
(b)
of
an employee charged by the employer with the management or control of
the business or of any branch or department thereof;
(c)
of
an employee who has the right to engage or discharge employees on
behalf of the employer;
(d)
…
(e)
of
a person appointed to be in charge of machinery in terms of any
regulation made under the Occupational Health and Safety Act,
1993
(Act 85 of 1993)
the
employee may, notwithstanding any provisions to the contrary
contained in this Act, apply to the commissioner for increased
compensation in addition to the compensation normally payable in
terms of this Act …
”
[21] “
Occupational injury
” is defined in s 1 of
COIDA to mean “…
a personal injury sustained as a
result of the accident
”. “
Accident
” is
defined as “…
an accident arising out of and in the
course of an employee’s employment and resulting in personal
injury, illness or death
of an employee …
”
THE RESPECTIVE
PARTIES’ STANDPOINTS
[22]
By its nature, the defendant’s counsel argued first and relied
as authority on the judgment in
Road
Accident Fund v Monjane
[2007] ZASCA 57
“
Monjane
case
”
.
The gist of its argument was that the plaintiff was precluded from
claiming in the circumstance of this case, taking account statutory
constraints or limitations.
[23]
The plaintiff’s counsel’s submissions were that the
purpose of the 1995 Amendment Act
[4]
was to allow for equity to prevail where compensation is sought. She
also submitted that contrary to the defendant’s counsel’s
assertion, the court in
Mvumvu
took into account COIDA when it delivered its judgment.
[24] It may be so, however, apples need to be sorted out or compared
with apples.
EVALUATION
[25]
Mvumvu
was about the amended
s 18
of the
Road Accident
Fund Act where
a constitutional challenge to the legislative
provisions that placed a cap on the recovery of damages by those
victims of motor
collisions under the Act. This cap was in s 18.
[26] In the unamended form s 18 provides:
“
(1) The liability of the Fund or an
agent to compensate a third party for any loss or damage contemplated
in section 17 which is
the result of any bodily injury to or the
death of any person who, at the time of the occurrence which caused
that injury or death,
was being conveyed in or on the motor vehicle
concerned, shall, in connection with any one occurrence, be limited,
excluding the
cost of recovering the said compensation, and except
where the person concerned was conveyed in or on a motor vehicle
other than
a motor vehicle owned by the South African National
Defence Force during a period in which he or she rendered military
service
or underwent military training in terms of the Defence Act,
1957 (Act No 44 of 1957), or another Act of Parliament governing the
said Force, but subject to subsection (2) –
(a)
to
the sum of R25 000 in respect of any bodily injury or death of any
one such person who at the time of the occurrence which caused
that
injury or death was being conveyed in or on the motor vehicle
concerned –
(i)
for
reward; or
(ii)
in
the course of the lawful business of the owner of that motor vehicle;
or
(iii)
in
the case of an employee of the driver or owner of that motor vehicle,
in respect of whom subsection (2) does not apply, in the
course of
his or her employment; or
(iv)
for
the purposes of a lift club where that motor vehicle is a motor car;
or
(b)
in
the case of a person who was being conveyed in or on the motor
vehicle concerned under circumstances other than those referred
to in
paragraph (a), to the sum or R25 000 in respect of loss of income or
of support and the costs of accommodation in a hospital
or nursing
home, treatment, the rendering of a service and the supplying of
goods resulting from bodily injury to or the death
of any one such
person, excluding the payment of compensation in respect of any other
loss or damage.
(2) Without derogating from any liability of
the Fund or an agent to pay costs awarded against it or such agent in
any legal proceedings,
where the loss or damage contemplated in
section 17 is suffered as a result of bodily injury to or death of
any person who, at
the time of the occurrence which caused that
injury or death, was being conveyed in or on the motor vehicle
concerned and who was
an employee of the driver or owner of that
motor vehicle and the third party is entitled to compensation under
the Compensation
for Occupational Injuries and Diseases Act, 1993
(Act No. 130 of 1993), in respect of such injury or death -
(a)
the
liability of the Fund or such agent, in respect of the bodily injury
to or death of any one such employee, shall be limited
in total to
the amount representing the difference between the amount which that
third party could, but for this paragraph, have
claimed from the Fund
or such agent, or the amount of R25 000 (whichever is the lesser) and
any lesser amount to which that third
party is entitled by way of
compensation under the said Act …
”
[27] The impugned subsection 1 of s 18 was deleted when the RAF Act
was correspondingly amended in terms of the 2005 Amendment
Act.
[28] Counsel for the plaintiff submitted that the Legislature did
not follow the whole of the reasoning by the Constitutional
Court
when it amended s 18.
[29] I do not agree.
[30] By deleting the subsection that was complained about the
Legislature complied with the dictates or recommendations of the
court. That is why in my considered view, no further appeal was
lodged against the new s 18.
[31] This ground cannot avail the plaintiff.
[32] What is in issue in this application is the interpretation of s
19, not s 18.
[33] I also do not agree with the plaintiff’s submission that
the Act as amended is ambiguous.
[34] Sections 18 and 19 of the RAF Act each deal with specific and
specified issues and aspects. It will not be correct to conflate
what
they say. This Court is called upon to look at the provisions of s 19
and determine whether the defendant’s special
plea should be
upheld. It cannot jump over to s 18 to determine a special plea filed
in terms of s 19.
[35] Counsel for the plaintiff further asked this Court to read into
the facts in issue here, the imputations about s 18 as set
out in
Mvumvu
. She gave the reason as this Court’s discretion
to do so.
[36] I have doubts about whether this Court would be justified to do
so.
[37] Similarly this Court cannot interpret this s 19 widely so as to
include the plaintiff’s circumstances and facts to
fit the
ruling in
Mvumvu
. Equally, I do not think I will be entitled
to do that.
[38] Mvumvu was not categoric as to whether the driver of the
impugned motor vehicle was also its owner.
[39]
On the other hand, the authority relied upon by the defendant,
Road
Accident Fund v Monjane
[5]
specifically dealt with s 19 of the RAF Act. Although this judgment
was delivered earlier, it in my considered view captured the
spirit
of the impugned section correctly and remains within the
constitutional boundaries or constraints as set out in
Mvumvu
.
[40] In
Monjane
, when the matter served in the High Court,
Shongwe J (as he was then) ordered, at the request of the parties,
that the special
plea in terms of s 19 be dealt with first, as it is
the case in our matter. Similarly, no evidence was adduced but the
parties
reached agreement on the facts necessary for the
determination of the special plea. They were –
40.1
that
the respondent was “
a
pedestrian
”
at the time of the accident (by which the parties presumably intended
to convey that the respondent was not “
being
conveyed in or on the motor vehicle concerned
”
within the meaning of s 18 of the RAF Act; which was not entirely
true;
40.2
that he was in the employ of his employer, Duarte, and was carrying
out his duties in pursuance of that employment when the
accident
occurred;
40.3 that Duarte was solely to blame for the
accident.
[41] After hearing argument and reserving judgment Shongwe J
dismissed the special plea with costs. He however subsequently
granted
the Fund leave to appeal to the Supreme Court of Appeal.
[42] The defence raised by the plaintiff in that matter was simply
that on the basis of the agreed facts it was not liable to
the
plaintiff (i.e. the injured person) for compensation in terms of s 17
of the RAF Act because, by virtue of s 35(1) of COIDA,
the
plaintiff’s employer, Duarte, being the driver whose negligence
caused the accident, would not have been liable to the
plaintiff; and
that in terms of s 19(a) of the RAF Act, the Fund was not obliged to
compensate a third party for loss or damage
for which neither the
driver nor the owner of the motor vehicle concerned would have been
liable but for s 21.
[43] In a nutshell, the plaintiff’s contention thereat was
that s 18(2) of the RAF Act does not create a new right of action
against the Fund. That it serves merely to qualify or limit the
Fund’s liability under s 17. That limitation, it was argued,
relate solely to the situation where the third party is conveyed –
“
in or on the motor vehicle concerned
”
and
accordingly s 18(2) contemplates that a third party will have an
unlimited claim where he or she was not being conveyed in or
on the
motor vehicle concerned, even though the vehicle was owned or being
driven at the time by the third party’s employer.
[44] As Scott JA found in that case, the above argument would have
no doubt been correct were it not for the provisions of s 19(a)
read
with s 35 of COIDA.
[45] The plaintiff insisted however, that if s 19(a) of the RAF Act
were to be construed so as to preclude an action against the
Fund in
every case where the vehicle concerned was owned or driven by the
third party’s employer regardless of whether the
third party
was being conveyed in or on the vehicle, the effect would be to
render meaningless the limitation contained in s 18(2).
They further
contended that s 19(a) had to be strictly construed so as not to
exclude the liability of the Fund in that case.
[46] The above is exactly what the plaintiff in our matter argued or
contended for.
[47] The effect of s 18(2), when read together with s 19(a) of the
RAF Act and s 35(1) of COIDA is that the limited claim contemplated
in s 18(2) will lie against the Fund when the wrongdoer, whether the
driver or the owner of the vehicle concerned, is not the third
party’s employer. In such a case the claim was limited but not
precluded. Mvumvu rectified that situation.
[48] The correct position is as set out in para [9] of
RAF v
Monjane
where the learned justice put it as follows:
“…
It
is only when the wrongdoer is the third party’s employer that
the claim is precluded. In such a case, the claim will be
precluded
regardless of whether or not the third party is being conveyed in or
on the motor vehicle concerned, provided only that
the injury
sustained by the third party is an ‘occupational injury’
as defined in COIDA. The effect of s. 19(1),
read with s. 35(1)
of COIDA, is therefore not to render s. 18(2) meaningless.
”
[6]
[49] I agree, with
RAF v Monjane
that where an “
occupational
injury
” is sustained in the context of a motor accident, s
35(1) of COIDA may on occasions have seemingly unfortunate
consequences,
the reason being that the basis upon which compensation
is determined under COIDA differs markedly from that under the RAF
Act.
The effect of s 35(1) is to deprive an employee of his or her
common law right of action to claim damages from an employer. However
COIDA substitutes a system which has advantages for an employee not
available at common law.
[50]
It needs to be mentioned here that the constitutionality of s 35(1)
of COIDA was upheld in
Jooste
v Score Supermarket Trading (Pty) Ltd
[7]
.
[51]
The RAF Act, like COIDA, constitutes social legislation but it
caters for a different situation. It is so that the two Acts
may at
times overlap, making it possible for a claimant to claim under both
of them
[8]
.
A line has nevertheless to be drawn and that duty of dealing with
same belongs to the sphere of the Legislature.
[52]
S 19(a) of the RAF Act as read with s 35(1) of COIDA is an example
of where and how such a line can and has to be drawn: An
employee who
sustains an “
occupational
injury
”,
as the plaintiff in our matter, in the context of a motor vehicle
accident will have no claim under the RAF Act
if
the wrongdoer is his or her employer
(my
emphasis). This was recognised in
Mphosi’s
case
[9]
.
[53]
I again concur with Scott J’s assertion in
RAF
v Monjane
[10]
that it is a well-established rule of construction that the
Legislature is presumed to know the law, including the authoritative
interpretation placed on its previous enactments by the courts. It is
so that the Legislature has in a series of subsequent enactments
retained in substance the statutory provisions upon which
Mphosi’s
case was decided
[11]
.
[54] It can thus be accepted that the construction used or placed
upon them correctly reflects the policy of the Legislature or
its
so-called intention.
CONCLUSION
[55]
It is therefore the finding of this Court that in the circumstances
of the motor vehicle collision that occurred resulting
in the
plaintiff being injured, the plaintiff does not have a claim against
the Fund,
alternatively
,
his claim does not attract liability of the Fund.
[56] In the circumstances, the special plea in terms of s 19(a) of
the RAF Act stands to be upheld.
ORDER
[57] The following order is made:
“
The
Special Plea in terms of s. 19(a) of the RAF Act is upheld with
costs.
”
N
F KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
FOR
THE PLAINTIFF : ADV E PRETORIUS
INSTRUCTED
BY : A WOLMARANS INC
Tel
No: 011 – 781 6050
FOR
THE DEFENDANT : ADV N MAYET
INSTRUCTED
BY : MAYAT, NURICK, LANGA INC
Tel
No: 011 442 4250
DATE
OF ARGUMENT : 04 SEPTEMBER 2014
DATE
OF JUDGMENT : 05 SEPTEMBER 2014
[1]
Case
CCT 67/10
[2011] ZACC 1
decided on 4 November 2010
[2]
Act 19
of 2005
[3]
Act
130 of 1993
[4]
Act 19
of 2005
[5]
(295/06)
[2007] ZASCA 57
; [2007] (SCA) 507 (RSA);
[2007] 4 All SA 987
(SCA);
2010 (3) SA 641
(SCA) (18 May 2007)
[6]
See
also
Mphosi
v Central Board for Co-operative Insurance Ltd
1974 (4) SA 633
(A)
[7]
1999
(2) SA 1
(CC)
[8]
For
e.g. s 18(2) of the RAF Act and s 36 of COIDA
[9]
Supra
[10]
At
para [12]
[11]
Such
enactments include the Compulsory Motor Vehicle Insurance Act 56 of
1976; the Motor Vehicle Accidents Act 84 of 1986 and
the
Multilateral Motor Vehicle Accidents Fund Act 93 of 1989