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[2021] ZASCA 48
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Eksteen v Road Accident Fund (873/2019) [2021] ZASCA 48; [2021] 3 All SA 46 (SCA); 2021 (8) BCLR 844 (SCA) (21 April 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 873/2019
In the matter
between:
JOHAN
SEBASTIAAN EKSTEEN
APPELLANT
and
ROAD
ACCIDENT
FUND
RESPONDENT
Neutral
citation:
Eksteen
v Road Accident Fund
(873/2019)
[2021] ZASCA 48
(21 April 2021)
Coram:
PETSE
AP and MAKGOKA and DLODLO JJA and LEDWABA and POYO-DLWATI AJJA
Heard:
Matter
disposed of without a hearing in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
on
17
February 2021.
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09:45 on 21 April 2021.
Summary:
Section
2(1)
(e)
(ii)
of the
Road Accident Fund (Transitional Provisions) Act 15 of 2012
–
whether obligatory for a plaintiff affected by the section to first
withdraw the action instituted in a magistrate’s
court prior to
issuing summons in the high court – whether prescription
nevertheless commences to run even if action instituted
in a
magistrate’s court has not been withdrawn.
ORDER
On
appeal from
:
Free State Division of the High Court, Bloemfontein (Musi JP, Loubser
J and Murray AJ concurring
sitting
as court of first instance
):
1
The appeal is upheld in part with costs.
2
The action is referred back to the high court for trial in accordance
with the principles
set out in this judgment before a differently
constituted court.
3
The order of the high court is set aside and in its place is
substituted the following:
‘
3.1
The defendant’s special plea of lis alibi pendens is upheld.
3.2
The court declines to determine the special plea of prescription as
the facts contained in the agreed
statement of the parties are
inadequately stated for a proper determination to be made.
3.3
The costs associated with the determination of the defendant’s
special pleas shall be costs in
the cause.’
JUDGMENT
Poyo-Dlwati
AJA (Ledwaba AJA
concurring
dissenting):
[1]
This appeal turns on the interpretation of s 2(1)
(e)
(ii) of
the Road Accident Fund (Transitional Provisions) Act 15 of 2012 (the
TPA). The preamble to the TPA reads:
‘
To
provide for transitional measures in respect of certain categories of
third parties where claims were limited under the Road
Accident Fund
Act 1996 (Act No. 56 of 1996), prior to 1 August 2008; and to provide
for matters connected herewith.’
Section
(2)(1)
(e)
(ii)
of the TPA provides:
‘
Unless
the third party expressly and unconditionally indicates to the Fund
on the prescribed form, within one year of this Act taking
effect, to
have his or her claim remain subject to the old Act, the claim of
such third party is subject to the new Act under the
following
transitional regime:
(e)
A third party who has prior to this Act coming into operation- (ii)
instituted an action against the Fund in a Magistrate’s
Court,
may withdraw the action and, within 60 days of such withdrawal,
institute an action in a High Court with appropriate jurisdiction
over the matter: Provided that no special plea in respect of
prescription may be raised during that period.’
[2]
The
TPA came into effect as a result of the Constitutional Court decision
in
Mvumvu
,
[1]
which declared
ss 18(1)
(a)
(i),
18
(1)
(b)
and
18
(2) of the
Road Accident Fund Act 56 of 1996
inconsistent with
the Constitution and invalid. Those provisions capped to R25000
various claims of certain categories of claimants.
[2]
[3]
On 17 January 2008, the appellant, Mr Johan Sebastiaan Eksteen,
instituted an action against the respondent,
the Road Accident Fund,
in the Bloemfontein magistrate’s court. Without withdrawing
that action, and on 19 October 2016,
the appellant instituted another
action against the respondent, in the Free State Division of the High
Court (the high court) for
damages he suffered as a result of a motor
vehicle collision, which occurred on 18 June 2003. According to the
appellant’s
particulars of claim, he was a passenger in a motor
vehicle driven by one Mr De Lange which collided with a vehicle
driven by Mr
Hyde at the intersection of Monument Road and Nico van
der Merwe Avenue in Bloemfontein. It was alleged that the sole cause
of
the collision was the negligence of Mr Hyde.
[4]
The respondent defended the action and delivered two special pleas
and the main plea disputing liability.
The first special plea was one
of
lis
alibi pendens.
It
was pleaded that the appellant had instituted an action in the
Bloemfontein magistrate’s court based on the same cause
of
action which was still pending. The second special plea was that the
appellant’s claim had prescribed, as the action was
instituted
five years after the collision, contrary to the provisions of the
Road Accident Fund Act.
[3
]
[5]
The matter served before Jordaan J for trial. The parties agreed and
the court ordered, in terms of
Rule 33(1)
, that the special pleas be
adjudicated separately from the main plea. For this purpose, a
statement of agreed facts was prepared
by the parties. The relevant
parts of that statement read:
‘
1
. . .
2
. . .
3
. . .
4.1
. . .
4.2
The Plaintiff submitted a claim with the Defendant on or about 17
June 2004 in terms of
the provisions of the
Road Accident Fund Act,
56 of 1996
, as amended (“the Act”).
4.3
The claim was submitted by the
Plaintiff to the Defendant within the prescribed period of time.
4.4
The
Plaintiff issued a summons from the Magistrate’s Court
for the
District of Bloemfontein, held at Bloemfontein, under case number
970/2008 on 16 January 2008 (“the Magistrate’s
Court
matter”).
4.5
The Magistrate’s Court summons
was served on the Defendant on or about 18 February 2008.
4.6
The Plaintiff lodged the prescribed
RAF 4 claim form with the Defendant on 13 March 2014.
4.7
The Plaintiff issued summons from the
High Court of South Africa in Bloemfontein on 19 October
2016 under
case 4972/2016 (“the High Court matter”).
4.8
The High Court summons was served on
the Defendant on 20 October 2016.
4.9
The Defendant filed a plea in the High
Court matter on 13 December 2016.
4.10
The Defendant filed special pleas of
lis
pendens
and prescription during or about 26 May 2017 (“the
special pleas”).
5.1
The Defendant contends that this
matter is pending in another court, with which averment the
Plaintiff
agrees.
5.2
The Defendant further contends that
the Plaintiff’s claim prescribed, due to the fact that
the
summons was issued on 19 October 2016, which is more than 5 years
after the date on which the cause of action arose.
5.3
The Plaintiff contends that as the
Plaintiff’s claim was duly lodged with the Defendant
on 17 June
2004, whilst summons in the Magistrate’s Court action was duly
served on the Defendant on 18 February 2008, prescription
therefore
does not play a role.
5.4
The Defendant further contends that
the Plaintiff lodged the RAF 4 form with the Defendant on
13 March
2014 and accordingly the Plaintiff’s claim for non-pecuniary
loss has prescribed.
5.5
The Plaintiff further contends that as
the RAF 4 was duly lodged with the Defendant on 13 March
2014, the
Plaintiff’s claim for non-pecuniary loss has not prescribed.’
[6]
The parties further agreed that the high court was to determine the
two special pleas and the
effect of s 2(1)
(e)
(ii) of the
TPA, in particular, whether the appellant was entitled to
proceed with the high court action despite the pending
action in the
magistrate’s court. Jordaan J expressed a prima facie view that
for a plaintiff who elects to prosecute and
institute an action in
the high court, to enjoy the protection of the section against
prescription, he or she must first withdraw
the magistrate’s
court action and institute an action in the high court within 60
days. However, he did not decide the dispute
before him, as his prima
facie view differed with an earlier decision of that division on the
same issue and with other divisions,
but referred the matter to the
full bench for a final decision.
[7]
The full bench (Musi JP, Loubser J and Murray AJ concurring) found in
favour of the respondent and upheld
the special pleas. After
analysing various decisions relating to proper interpretation of s
2(1)
(e)
(ii) of the TPA, it found, ‘that the word “may”
in the context of this section meant that a plaintiff had an
election.
The plaintiff may prosecute the claim in the magistrate’s
court until it is finalized or he or she may decide to institute
the
action in the high court. The plaintiff may elect to continue with
the claim in the magistrate’s court because with or
without the
cap it may fall within the monetary jurisdiction of that court. He or
she may decide to amend the monetary value of
the claim so that it is
more than the cap but less than the maximum monetary jurisdiction of
the magistrate’s court or he
or she may abandon the amount
which is more than the maximum monetary jurisdiction of that court.
“May”, in this context,
therefore means that the
plaintiff has an election to litigate in one of [the] two fora’.
[8]
The full bench further observed that the word ‘such’ in
the section had a grammatically
intractable meaning and did not have
an alternative meaning. It held that the words ‘within 60 days
of such withdrawal’
meant within 60 days from the date of the
withdrawal of the action in the magistrate’s court. It
concluded that, ‘there
must be an action in the magistrate’s
court based on the cap. There must be an election to prosecute that
action in the high
court with jurisdiction over the matter. The
plaintiff must first withdraw the action in the magistrate’s
court and within
60 days after the withdrawal of the action in the
magistrate’s court institute the action in the high court. If
the steps
are followed in this sequence the plaintiff would be
protected against the special plea of prescription’. It, in the
result,
dismissed the appellant’s claim with costs.
[9]
Dissatisfied
with this order, the appellant appeals with the leave of the full
bench. The respondent does not oppose the appeal,
and has filed a
notice to abide the decision of this Court.
[10]
As I have stated, this appeal has its genesis in the interpretation
of s 2 (1) (e) (ii) of the TPA favoured by
the full bench. The
question to be answered is whether in terms of the provisions of s 2
(1) (e) (ii) of the TPA a claimant is
required to withdraw his claim
in the magistrate’s court prior to instituting an action in the
high court. There are various
conflicting judgments in the various
divisions of the high court on this issue. For instance, in
Sekwere
[4]
,
the court found that the section was not peremptory and thus did not
oblige claimants to first withdraw the magistrate’s
court
summons and only thereafter issue same in the high court. It found
that there was no obligation on the plaintiff to have
followed a
step-by-step process which was not provided for by the TPA.
[11]
In
Klaas
[5]
,
the court held, disagreeing with
Sekwere
:
‘
I
do not agree that the legislature did not provide a step-by-step
procedure of how the summonses of court actions were to be dealt
with. What is to be done is very clear from the provisions
of
s 2(1)
(e)
(ii)
of the TPA. The legislature, quite logically, expected that claimants
who had to go to the Magistrate’s Court due to
the statutory
limitations in the
quantum
of their claims had to be offered a transitional mechanism to launch
new actions in the High Courts, should there be a need. In
my view,
the sequence is very clear in the provision. You withdraw the earlier
instituted Magistrate’s Court action and within
60 days of such
withdrawal institute an action in the High Court.’
[12]
In
Tshabalala
,
[6]
the court, agreeing with
Klaas
,
held:
‘
The
plaintiff is required to first withdraw the action in the
Magistrate’s Court. The fact that the plaintiff is allowed
merely 60 days thereafter to institute the action in the High Court
is indicative of this fact. The 60 day time limit is there for
good
reason. It would be untenable for a plaintiff to withdraw his/her
action and, thereafter, not institute the High Court action
for an
indefinite period. Legal proceedings need to be certain, and need to
end.’
And
lastly in
Buthelezi
[7]
the court agreed with
Klaas
and
Tshabalala
and held:
‘
The
act makes provision for the action to be first withdrawn in the
Magistrate’s Court and subsequent to that summons be issued
in
the High Court. It further held, upholding the special plea for
prescription, that the section uses the word “may”
which
means that the third party is not compelled to withdraw the action,
but may only withdraw the action in the Magistrate’s
Court if
he/she has the intention of instituting the action in the High
Court.’
[13]
Before us, it was submitted on behalf of the appellant that it was
not obligatory for the appellant to withdraw
the magistrate’s
court action prior to instituting the high court action. Such an
interpretation, so went the contention,
would be methodical and would
deny claimants such as the appellant their right to equality whose
claims were previously limited
by the unconstitutional statutory
provision.
[14]
It is apt to quote what this court had to say about interpreting the
RAF legislation in
Pithey
v Road Accident Fund
:
[8]
‘
It
has long been recognised in judgments of this and other courts that
the Act and its predecessors represent social legislation
aimed at
the widest possible protection and compensation against loss and
damages for the negligent driving of a motor vehicle.
Accordingly, in
interpreting the provisions of the Act, courts are enjoined to bear
this factor uppermost in their minds and to
give effect to the
laudable objectives of the Act.’
[15]
The principles applicable to statutory interpretation (or any written
document for that matter) are trite. In
Independent
Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and
Others
,
[9]
the Constitutional Court, reiterating the principles laid down in
Endumeni
,
[10]
held that a contextual and purposive approach must be applied to
statutory interpretation. Courts must have due regard to the context
in which the words appear, even where the words to be construed are
clear and unambiguous.
[11]
In
Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
,
[12]
Moseneke DCJ held that a contextual approach requires that
legislative provisions are interpreted in the light of the text of
the legislation as a whole (internal context).
[16]
Bearing the above in mind and taking into account the purpose for
which the TPA was enacted, properly construed,
the provisions of s 2
(1) (e) (ii)of the TPA demonstrate that a claimant has an election to
make; hence the word ‘may’.
Ascribing meaning to the word
‘may’ would mean in this context that either the claimant
may withdraw the action in
the magistrate’s court, where, for
example, the quantum of the claim sought to be pursued, exceeds the
jurisdiction of a
magistrate’s court. Alternatively, the
claimant may decide to forego the amount in excess of the
jurisdiction of a magistrate’s
court and continue to prosecute
its claim in such court. Once an election has been made to withdraw
the action in the magistrate’s
court, then the claimant has
sixty days within which to institute an action in the high court and
no plea of prescription can be
raised during that period. If there is
no election made, namely the claim remains in the magistrate’s
court, then the 60
day period does not come into play. In my view,
any contrary interpretation would be negating the context upon which
this legislation
was enacted.
[17]
Furthermore, the purpose for the insertion of the 60 day period to
institute an action in the high court is to
ensure that there is
certainty for the period within which to institute such an action. It
also protects those claimants from a
plea of prescription. The vital
role time limits play in bringing certainty and stability to social
and legal affairs and maintaining
the quality of adjudication has
been repeatedly emphasised.
[13]
The legislature could not have intended that the two actions would
run parallel to each other, due to the risk of the plea of
lis
alibi pendens
.
The 60 day period is triggered only once an election has been made.
This clearly demonstrates that if the 60 day period referred
to in
the text was not catered for, then there would be no time limit
within which to institute an action in the high court and
this would
go against the principle of certainty in legal proceedings.
[18] It
is a reasonable and sensible interpretation that s 2(1)(
e
)(ii)
contemplates that the magistrate’s court action be withdrawn
first prior to the institution of the action in the high
court. If
one has regard to the TPA as a whole, it is clear that it was meant
to provide transitional measures for actions that
were already
instituted in the magistrate’s court at the time that the TPA
was enacted until they were finalized depending
on the election made
by the claimant. If one were to adopt the interpretation preferred by
the appellant then there would be no
end to the transitional period,
thus undermining the apparent purpose of the TPA.
[19]
Furthermore, as it has happened in this case, the protection afforded
by this section does not apply if the election
has not been made.
There is nothing preventing the respondent from raising the defence
of
lis
alibi pendens
if
the magistrate’s court action has not been withdrawn prior to
instituting another action in the high court. The same applies
with
prescription if the high court action has not been instituted within
five years from the date of the collision. A claimant
has to follow
these steps in order to enjoy the full protection of the TPA. In any
event, and in line with what was stated in
Pithey
[14]
above, the appellant will not be left empty handed as his claim in
the magistrate’s court is still pending.
[20]
Thus, the reasoning of the full bench cannot be faulted. Accordingly,
the appeal must fail. There should be no
costs order as the
respondent did not participate in the appeal.
[21] In
the result, I would have made the following order:
The appeal is
dismissed.
T P POYO-DLWATI
ACTING JUDGE OF
APPEAL
Petse
AP (Makgoka and Dlodlo JJA concurring):
[22]
I have had the benefit of reading the judgment (first judgment) of my
colleague, Poyo-Dlwati AJA. For reasons that
follow, I, with respect,
disagree with her conclusion in relation to the special plea of
prescription. The facts of this case have
been canvassed in the first
judgment and will not be rehashed in this judgment. However, where
necessary for purposes of this judgment,
I shall also set out the
relevant factual background.
[23]
The appellant instituted an action in the Free State Division of the
High Court, Bloemfontein, for damages arising
out of a collision that
had occurred on 18 June 2003. This action was instituted pursuant to
the provisions of s 2(1)
(e)
(ii)
of the Road Accident Fund (Transitional Provisions) Act 15 of 2012
(the TPA). The first judgment sets out how it came about
that the TPA
was enacted.
[15]
When the TPA
came into effect, the appellant had already instituted an action in
the Magistrate’s Court, Bloemfontein (first
action), arising
out of the same collision, which was still pending when the high
court summons for substantially the same relief,
barring the quantum
of the claim, was issued.
[24]
It is common cause, as emerges from the record, that the first action
had not been withdrawn before the high court
action was instituted.
The first action was therefore still pending when the matter served
before the Full Bench. This appeal lies
against the judgment of the
Full Bench. Because the appellant elected to also litigate in the
high court, relying on the same cause
of action, whilst his first
action was still pending in the magistrate’s court, the Road
Accident Fund (the Fund) unsurprisingly
raised a special plea of
lis
alibi pendens
, which the high court rightly upheld.
[25]
The crux of the special plea of prescription was that the appellant
issued summons in the high court on 19 October
2016, whereas his
cause of action (ie the collision from which he sustained serious
bodily injuries) had arisen on 18 June 2008.
This summons was served
on the Fund on 21 October 2016, ‘which [was] more than 5 years
after the date on which the cause
of action arose’.
[26]
As indicated in the first judgment, both special pleas came before
the Full Bench, whose judgment was penned by
Musi JP, in which
Loubser J and Murray AJ concurred. In essence, the high court held
that the prescription point was well-founded.
In the result, it
upheld the special plea of prescription and dismissed the action with
costs. Hence the present appeal with its
leave.
[27]
In reaching this conclusion, the high court, directing its focus on
s 2(1)
(e)
(ii) of the TPA, reasoned thus:
‘
The
section should therefore be interpreted as follows. There must be an
action in the Magistrate’s Court based on the cap.
There must
be an election to prosecute that action in the High Court with
jurisdiction over the matter. The plaintiff must first
withdraw the
action in the Magistrate’s Court and within 60 days after the
withdrawal of the action in the Magistrate’s
Court institute
the action in the High Court. If the steps are followed in this
sequence the plaintiff would be protected against
a special plea of
prescription.
The
reason why there must first be a withdrawal is to ensure that the
same action is not prosecuted in two different
fora
. Even if
the new claim in the High Court shall have prescribed, the plaintiff
is afforded a shield for 60 days against a special
plea of
prescription. If the claim is withdrawn in the Magistrate’s
Court and it is not prosecuted in the High Court within
60 days, then
the plaintiff would be without Legislative protection against a
special plea of prescription. When the claim is instituted
in the
High Court within 60 days after the withdrawal of the Magistrate’s
Court action, then only the High Court would be
seized of the matter.
The withdrawal of the action in the Magistrate’s Court and
within 60 days thereafter instituting it
in the High Court, are
therefore conditions precedent to the protected institution of the
claim in the High Court.
The
interpretation to the effect that the plaintiff may litigate against
the same defendant in different
fora
at the same time based on
the same causa renders the 60 days nugatory. The interpretation that
the true meaning of the section
is to have only one forum seized of
the matter at any given time, means that the defence of
lis alibi
pendens
will not arise.
.
. .
The
Legislature has granted the plaintiff the right to institute the
action in the High Court without the possibility of a special
plea of
prescription being raised, during the window period. It has, however,
also directed that certain formalities or conditions
should precede
to the exercise of that right. The formalities or conditions must
therefore be rigorously observed. In
Munro v Dranklisensieraad,
Welkom
the learned Judge quoted Maxwell with approval where the
latter said the following:
“
.
. . Where powers, rights or immunities are granted with a direction
that certain regulations, formalities or conditions shall
be complied
with, it seems neither unjust nor inconvenient to exact a rigorous
observance of them as essential to the acquisition
of the right or
authority conferred, and it is therefore probable that such was the
intention of the Legislature . . .”
Moreover,
this section [ie proviso to s 2(1)
(e)
(ii)] takes away the
defendant’s right to raise the defence of prescription whilst
it gives the plaintiff the right to sue
after the claim has
prescribed. The defendant is therefore prejudiced, albeit for a noble
reason. This is a further reason why
there should be strict
compliance with the formalities and conditions in the section.’
It
bears mentioning that the high court’s reasoning has, in
substance, been endorsed in the first judgment.
[28]
At the risk of stating the obvious, I emphasise that the enquiry here
is directed at ascertaining the meaning of
the provisions of s
2(1)
(e)
(ii) of the TPA, in the light of the language employed
in this section, taking into account both the context and the purpose
to
which the TPA is directed. This exercise is essentially one of
statutory interpretation. On this score,
Natal Joint Municipal
Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA
593
(SCA);
[2012] 2 All SA 262
(SCA) (
Endumeni
) reminds us
that:
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation. In a contractual context, it is to make a contract for
the parties other than the one they in fact
made. The “inevitable
point of departure is the language of the provision itself”,
read in context and having regard
to the purpose of the provision and
the background to the preparation and production of the
document.’
[16]
[29]
As noted in the first judgment,
Endumeni
was cited with
approval in
Independent Institute of Education (Pty) Limited v
Kwazulu-Natal Law Society and Others
[2019] ZACC 47
;
2020 (2) SA
325
(CC);
2020 (4) BCLR 495
(CC). There, the Constitutional Court
stated the following:
‘
This
canon is consistent with a contextual approach to statutory
interpretation. It is now trite that courts must properly
contextualise
statutory provisions when ascribing meaning to the
words used therein. While maintaining that words should generally be
given their
ordinary grammatical meaning, this Court has long
recognised that a contextual and purposive approach must be applied
to statutory
interpretation. Courts must have due regard to the
context in which the words appear, even where “the words to be
construed
are clear and unambiguous”.’
[17]
[30]
Thus, it is a well-established principle of statutory interpretation,
reinforced by a plethora of decisions of
our courts, to give effect
to the object or purpose of the legislation being interpreted. As
Schutz JA in
Standard Bank Investment Corporation Ltd v
Competition Commission and Others; Liberty Life Association of Africa
Ltd v Competition
Commission and Others
[2000] ZASCA 20
;
[2000] 2
All SA 245
(A);
2000 (2) SA 797
(SCA), put it:
‘
Our
courts have, over many years, striven to give effect to the policy or
object or purpose of legislation. This is reflected in
a passage from
the judgment of Innes CJ in
Dadoo
Ltd and Others v Krugersdorp Municipal Council
1920 AD 530
at 543.’
[18]
[31]
It is as well to remember that the legislation under consideration
here is what has for a long time now been described
as ‘social
legislation’. Thus, we are enjoined to interpret such
legislation in a manner that will afford the widest
possible
protection and compensation to third parties against loss and damages
arising out of the negligent driving of motor vehicles
to the extent
that the language used in the provision can reasonably bear.
[19]
[32]
In endorsing the conclusion reached by the high court, the first
judgment, in substance, says the following. First,
that a third party
who has instituted action in a magistrate’s court ‘has an
election to make’ as to whether
he or she wishes to rather
pursue the claim in the high court.
[20]
With this statement, I have no qualms. Second, that ‘[O]nce an
election has been made to withdraw the action in the magistrate's
court . . . the claimant has 60 days within which to institute an
action in the high court’.
[21]
Third, that ‘[I]f there is no election made, namely the claim
remains in the magistrate’s court, then the 60 day period
does
not come into play’.
[22]
[33]
The first judgment then proceeds to say that the rationale for the
insertion of the 60 day period, within which
the high court action
must be instituted, is to promote certainty and protect third parties
from a plea of prescription.
[23]
To my mind, the issue under consideration in this case should be
approached from a broader perspective having regard to the language
of the relevant section and its manifest purpose.
[34]
It is convenient at this juncture to quote s 2 of the TPA. It reads,
in relevant parts, as follows:
'2
Transitional arrangements for certain third parties
(1)
Unless the third party expressly and unconditionally indicates to the
Fund on the prescribed form, within one year of this Act
taking
effect, to have his or her claim remain subject to the old Act, the
claim of such third party is subject to the new Act
under the
following transitional regime:
(a)
Subject to the
remaining provisions of this Act, the cause of action of the third
party is deemed to have arisen on 1 August 2008
for purposes of
section 12 of the Road Accident Fund Amendment Act, 2005 (Act 19 of
2005), and section 17 (4A)
(b)
of
the new Act.
(b)
The right of the
third party to claim compensation for non-pecuniary loss is limited
to a maximum amount of R25 000, unless-
(i)
the third party submits a serious injury assessment report as
contemplated in
Regulation 3 of the Road Accident Fund Regulations,
2008, indicating a serious injury, within two years of this Act
taking effect;
and
(ii)
it is determined in accordance with Regulation 3 of the Road Accident
Fund Regulations,
2008, that the third party suffered a serious
injury.
(c)
. . .
(d)
. . .
(e)
A third party who has, prior to this Act coming into operation-
(i)
lodged a claim with the Fund on the prescribed claim form in terms of
the old
Act, shall not be required to lodge an RAF1 form in terms of
the new Act; and
(ii)
instituted an action against the Fund in a Magistrate’s Court,
may withdraw
the action and, within 60 days of such withdrawal,
institute an action in a High Court with appropriate jurisdiction
over the matter:
Provided that no special plea in respect of
prescription may be raised during that period.’
[35]
The manifest purpose of the TPA, as its preamble clearly indicates,
was to ‘provide for transitional measures
in respect of certain
categories of third parties whose claims were limited under the Road
Accident Fund Act, 56 of 1996 (the RAF
Act) prior to 1 August 2008 .
. .’. Section 18 of the RAF Act – as it then stood –
provided that the right of
the third party to claim compensation for
non-pecuniary loss was limited to a maximum amount of R25 000. Thus,
it had the effect
of putting a cap on the maximum amount that a third
party could claim for non pecuniary loss, regardless of the
severity of
the bodily injuries suffered by such third party. But,
since the enactment of the TPA, this is no longer the case, provided
certain
requirements have been satisfied. And because the appellant’s
claim for non-pecuniary loss was capped at R25 000, it fell
within
the jurisdiction of a magistrate’s court.
[36]
However, since the TPA took effect, a third party, who wishes to
claim damages for non-pecuniary loss in excess
of R25 000 –
which is the amount to which the claim is as a general rule
limited
[24]
– may do so
provided two prerequisites have been met. First, the third party must
submit a serious injury assessment report
as contemplated in
regulation 3(1)
(a)
of the Road Accident Fund Regulations.
[25]
Second, the Fund must determine in accordance with regulation 3(3)
(c)
and
(d)
that the third party suffered serious injury. Once these two
prerequisites have been met, the provisions of s 2(1)
(e)
(ii)
of the TPA would be triggered. Accordingly, a third party who had,
prior to the TPA coming into effect,
[26]
already instituted an action in a magistrate’s court, had an
election, to withdraw such action and, within 60 days of such
withdrawal, institute an action in a division of the high court with
appropriate jurisdiction over the matter.
[37]
Self-evidently, being desirous of taking advantage of the benefits
brought about by the TPA, the appellant instituted
an action in the
high court in which he, amongst others, claimed a sum of R600 000 in
respect of non-pecuniary loss. But where
the appellant went wrong was
to institute a fresh action in the high court without first
withdrawing the one pending in the magistrate’s
court, as
contemplated by the clear provisions of s 2(1)
(e)
(ii) of the
TPA. Hence my agreement with the first judgment that the special plea
of
lis alibi pendens
raised against the appellant’s
summons in the high court was rightly upheld.
[38]
Bearing in mind that the appellant instituted his high court action
without having first withdrawn the action pending
in the magistrate’s
court, the pertinent question that now arises is whether the high
court action had, in the light thereof,
truly become prescribed. In
considering this question, it is as well to pay heed to the warning
of Wessels AJA in
Stellenbosch Farmers' Winery Ltd v Distillers
Corporation (SA) Ltd and Another
1962 (1) SA 458
(A) at 476 E-F
that:
'.
. . it is the duty of the Court to read the section of the Act which
requires interpretation sensibly, i.e. with due regard,
on the one
hand, to the meaning or meanings which permitted grammatical usage
assigns to the words used in the section in question
and, on the
other hand, to the contextual scene, which involves consideration of
the language of the rest of the statute as well
as the “matter
of the statute, its apparent scope and purpose, and, within limits,
its background”.
In
the ultimate result, the Court strikes a proper balance between these
various considerations and thereby ascertains the will
of the
Legislature and states its legal effect with reference to the facts
of the particular case which is before it
.’
It
is to that exercise that I now turn.
[39]
It is noteworthy that unlike the other parts of s 2, subsec 1
(e)
(ii)
does not stipulate any time frame within which a third party must
withdraw an action pending in a magistrate’s court
if the third
party desires to claim more than R25 000 in respect of
non-pecuniary loss. For example, s 2(1) explicitly provides
that
‘unless the third party expressly and unconditionally indicates
to the Fund on the prescribed form, within one year
of the [TPA]
taking effect, to have his or her claim remain subject to the old
Act, the claim of such third party is subject to
the new Act . .
.’.
[27]
Absent an
unconditional indication to the Fund within the stipulated time, the
third party’s claim is, by the operation of
the law, made
subject to the new Act in terms of the regime contained in the TPA.
Subsection (1)
(b)
in turn provides that if the third party wishes to claim compensation
for non-pecuniary loss in excess of R25 000, he or she must
submit a
serious injury assessment report indicating a serious injury. Again,
this step must be taken within two years of the TPA
taking effect.
Then there is subsec (1)
(e)
(ii),
which stipulates that once the action pending in a magistrate’s
court is withdrawn –undoubtedly with a view to
instituting
another action in the high court – the high court action is
required to be instituted within 60 days of such
withdrawal. In that
event, the third party is immunised from a special plea of
prescription that the Fund would otherwise have
been entitled to
raise but for the proviso to s 2(1)
(e)
(ii).
[40]
Interestingly and most significantly, nowhere does the TPA expressly
or by necessary implication provide that the
third party, if he or
she elects to withdraw the magistrate’s court action – in
order to institute an action in the
high court – must do so
within a prescribed period of time from the TPA taking effect. All
that subsec
(1)
(e)
(ii) contemplates is, first, the withdrawal of the one
action – pending in a magistrate’s court – and
thereafter
the institution of another in the high court, the latter
to be instituted within 60 days of the withdrawal. Quite clearly
therefore,
it seems to me that the decision as to whether or not to
withdraw, and if so when, is at the absolute discretion of the third
party.
This is, however, not to suggest that the third party, as
plaintiff, would be justified in taking an extraordinarily long
period
of time to make an election one way or other. In terms of the
rules of the magistrate’s court, a plaintiff is obliged, at
the
risk of his or her claim becoming superannuated, to prosecute his or
her claim to finality within a reasonable period of time.
And what
would be a reasonable period can only be determined with reference to
the facts of each case.
[41]
It bears mentioning that in his action in the magistrate’s
court, the appellant claimed a sum of R25 000
in respect of
non-pecuniary loss. But in the high court action this claim was
augmented exponentially to a sum of R600 000, some
R575 000 more
than what was claimed in the magistrate’s court. The effect of
the high court’s judgment, therefore,
is that the appellant
will now have to forego the latter amount and be content with
R25 000, which is the maximum amount recoverable
in a
magistrate’s court in terms of the old Act.
[28]
Whilst cognisant of the fact that the extent of the appellant’s
non-pecuniary loss would be a matter for a trial court to
determine,
sight should, however, not be lost of the fact that we are here
dealing with social-security legislation, a fact also
recognised by
the Constitutional Court in
Mvumvu
and Others v Minister of Transport and Another
[2011] ZACC 1
;
2011 (2) SA 473
(CC);
2011 (5) BCLR 488
(CC)
(
Mvumvu
).
[29]
The high court did not advert to this important consideration in its
judgment.
[42]
The first judgment says that ‘[O]nce an election has been made
to withdraw the action in the magistrate’s
court, then the
claimant has 60 days within which to institute an action in the high
court’.
[30]
It then goes
on to say that ‘[T]he 60 day period is triggered . . . once an
election has been made’.
[31]
I do not agree. These statements do not, with respect, take into
account the full purport of s 2(1)
(e)
(ii).
In my view, not only must the third party make an election to
withdraw the action, he or she must as a matter of fact do so.
Only
then would the 60 day prescription period commence to run. On the
interpretation of s 2(1)
(e)
(ii)
espoused in the first judgment, it matters not whether the action has
actually been withdrawn, thus implying that a mere election
to do so
suffices. Such an interpretation is tenable only if one ignores the
words ‘within 60 days of such withdrawal’
contained in
this section, to which effect must be given. But to ignore these
crucial words would plainly be impermissible. And
yet this is
precisely what the first judgment has done.
[43]
It is a well-entrenched rule of statutory interpretation that all the
words used in a statute must be given effect
to. Thus, superfluity of
the words used in a statute is not lightly presumed. For, as Davis
AJA observed in
Wellworths Bazaars Ltd v Chandler’s Ltd
1947 (2) SA 37
(A);
[1947] 2 All SA 233
(A) at 43 with reference to
an old Privy Council decision in
Ditcher v Denison
(11 Moore
PC 325
at 357):
‘
It
is a good general rule in jurisprudence that one who reads a legal
document whether public or private, should not be prompt to
ascribe –
should not, without necessity or some sound reason, impute – to
its language tautology or superfluity, and
should be rather at the
outset inclined to suppose every word intended to have some effect or
be of some use.’
[44]
In
S v Weinberg
1979 (3) SA 89
(A);
[1979] 2 All SA 137
(A),
Trollip JA, in the course of considering the argument advanced by
counsel for the appellant as to the meaning of the word
‘gathering’
in s 9(1) of the Internal Security Act 44 of 1950, had the following
to say (at 98D-E):
‘
I
think that the starting point in considering this argument is to
emphasize the general well-known principle that, if possible,
a
statutory provision must be construed in such a way that effect is
given to every word or phrase in it: or putting the same principle
negatively, which is more appropriate here: “a statute ought to
be so construed that, if it can be prevented, no clause,
sentence, or
word shall be superfluous, void or insignificant . . .”.’
[45]
Accordingly, when interpreting a statutory provision one must proceed
from the fundamental premise that meaning
must be given to every word
where the context lends itself to such meaning. The rationale for
this principle is that a statute
is taken not to use words without
meaning. In
Attorney-General, Transvaal v Additional Magistrate
for Johannesburg
1924 AD 421
, Kotze JA pointedly remarked that to
regard words occurring in a section as having been inserted
per
incuriam
does not accord with the well-established canon of
statutory interpretation for:
‘“
A
statute,” says Cockburn, R.J, “should be so construed
that, if it can be prevented, no clause, sentence or word shall
be
superfluous, void or insignificant.”
The
Queen v Bishop of Oxford
(4 Q.B.D at 261). To hold certain words occurring in a section of an
Act of Parliament as insensible, and as having been inserted
through
inadvertence or error, is only permissible as a last resort. It is,
in the language of Erle, C.J: “the
ultima
ratio
,
when an absurdity would follow from giving effect to the words as
they stand.”
Reg.
v St. John
(2 B and S. 706) in the Exchequer Chamber affirming the judgment of
the Queen’s Bench.’
[32]
[46]
It cannot be suggested in this case that the Legislature used the
words ‘within 60 days of such withdrawal’
through
inadvertence or error. On the contrary, it is manifest that the
wording of s 2(1)
(e)
(ii)
was carefully chosen specifically to cater for instances where, as
has happened in this case, a third party who wishes to claim
compensation for non-pecuniary loss in excess of R25 000 in order to
recover the full extent of his or her damages may do so without
the
risk of being met with a special plea of prescription that the Fund
would, in the ordinary course, be entitled to raise.
[33]
This was designed to meet the declaration of constitutional
invalidity of ss 18(1)
(a)
,
18(1)
(b)
and 18(2) made by the Constitutional Court in
Mvumvu,
which had hitherto capped claims for non-pecuniary loss at R25 000
regardless of the severity of the third party’s bodily
injuries
or extent of the loss suffered. And, as the high court rightly noted,
the third party must first withdraw the action pending
in the
magistrate’s court and thereafter institute a fresh action in
the high court within 60 days of such withdrawal. When
this is done,
the Fund may not raise a special plea of prescription to an action
instituted during the 60 day window period.
[47]
The interpretation favoured in this judgment does not occasion any
violence to the plain and unambiguous language
of the provision under
consideration in this case. For, as Innes CJ remarked more than a
century ago:
'A
Judge has authority to interpret, but not to legislate, and he cannot
do violence to the language of the lawgiver by placing
upon it a
meaning of which it is not reasonably capable, in order to give
effect to what he [or she] may think to be the policy
or object of
the particular measure.’
[34]
In
truth, it does no more than ascribe a proper meaning to the words
used in s 2(1)
(e)
(ii).
[48]
Thus, in the context of this case, two things must happen before the
commencement of the 60 day prescriptive period
is triggered. First,
there must be an intention evinced by the third party to withdraw the
action instituted in a magistrate’s
court. Second, that
intention must then translate into an overt act of carrying out the
intention by actually withdrawing such
action. Differently put,
absent the withdrawal of the action first, there can be no question
of the 60 day prescription period
having commenced to run.
[49]
Something needs to be said about the agreement of the parties in the
high court, in terms of rule 33(1) of the
Uniform Rules, that the two
special pleas in issue should be determined separately from the other
issues. To this end, the parties
prepared a statement of agreed facts
the relevant terms of which have been quoted in paragraph 5 of the
first judgment. Paragraph
4.6 of the statement of agreed facts states
that the appellant submitted the prescribed RAF4 claim form on 13
March 2014. Presumably,
this must be a reference to the serious
injury assessment report contemplated in regulation 3
[35]
of the Road Accident Fund Regulations. Paragraph 5.4 of the statement
of agreed facts goes further to say that the [appellant’s]
RAF4
form, having been lodged on 13 March 2014, the appellant’s
claim for non-pecuniary loss has prescribed. This assertion
by the
Fund entirely overlooks the provisions of s 2(1)
(b)
(ii)
which contemplates that a serious bodily injury assessment report,
once it has been submitted by the third party to the Fund,
must
thereafter be ‘determined in accordance with regulation 3 of
the Road Accident Fund Regulations, 2008, that the third
party
suffered a serious injury’. Accordingly, the question whether
such a claim has prescribed can only be determined not
with reference
to the date on which the third party submitted a serious injury
assessment report, but rather with reference to
the date on which the
Fund determined that the third party suffered a serious injury. For
as this Court made plain in
Road
Accident Fund v Duma and three related cases
(Health
Professions Council of South Africa as Amicus Curiae)
[2012]
ZASCA 169
;
2013 (6) SA 9
(SCA);
[2013] 1 All SA 543
(SCA), that:
‘
[u]nder
regulations 3(3)(c) and (d), . . ., the Fund must not only determine
the procedural validity of the RAF 4 form. It must
also determine the
substantive issue as to whether or not the report correctly assessed
the claimant’s injuries as serious.’
[36]
[50]
Curiously, after the Fund had determined that the appellant had
suffered a serious injury, nowhere did the statement
of agreed facts,
for example, state that the appellant’s high court action was
instituted pursuant to s 2(1)
(e)
(ii) of the TPA. And,
crucially, when such determination by the Fund was made. The
impression created by the statement of agreed
facts is that the high
court action bears no connection to these historical facts. And yet,
the fact that the appellant had: (a)
instituted action in the
magistrate’s court arising out of the same collision because
his claim for non-pecuniary loss was
limited to R25 000 by s 18 of
Act 56 of 1996, as it stood before the enactment of the TPA; (b)
section 18(1)
of the
Road Accident Fund Act of 1996
as it then stood
was declared unconstitutional by the Constitutional Court; (c) the
TPA was enacted pursuant to that declaration
of invalidity; and (d)
the latter enactment is what gave rise to the appellant’s high
court action, without which it would
never have seen the light of the
day, were not canvassed at all in the statement of agreed facts. It
was, therefore, not possible
in my view, for the high court to
determine whether the special plea of prescription was well-founded
without these critical facts
being placed before it.
[51]
Moreover, paragraph 4.6 of the agreed statement of facts is not
harmonious with paragraph 4.2, which records that
the appellant
submitted a claim with the Fund on 17 June 2004 in terms of the
provisions of the
Road Accident Fund Act 56 of 1996
. The cumulative
effect of these shortcomings in the parties’ agreed statement
of facts ineluctably leads to one conclusion,
namely that the facts
of the agreed statements were either equivocal or discordant, and
thus inadequate for the purpose for which
they were intended. In
Minister of Police v Mboweni and Another
[2014] ZASCA 107
;
2014 (6) SA 256
(SCA);
[2014] 4 All SA 452
(SCA), Wallis JA made some
pointed remarks in regard to the need to ensure that an agreed
statement of facts in terms of rule 33
of the Uniform Rules of Court
is adequate for its intended purpose and said the following:
‘
It
is clear therefore that a special case must set out agreed facts, not
assumptions. The point was re-emphasised in
Bane
v D’Ambrosi
,
where it was said that deciding such a case on assumptions as to the
facts defeats the purpose of the rule, which is to enable
a case to
be determined without the necessity of hearing all, or at least a
major part, of the evidence. A judge faced with a request
to
determine a special case where the facts are inadequately stated
should decline to accede to the request. The proceedings in
Bane
v D’Ambrosi
were only saved because the parties agreed that in any event the
evidence that was excluded by the judge’s ruling should
be led,
with the result that the record was complete and this court could
then rectify the consequences of the error in deciding
the special
case.’
[37]
In
this instance, the agreed statement of facts is, as already
indicated, singularly lacking in the requisite details necessary
for
a proper determination of the special plea of prescription raised by
the Fund. Accordingly, it is not possible for this Court
to salvage
the situation on appeal.
[52]
Finally, it is necessary briefly to say something about the plea of
lis alibi pendens
. Whilst noting that this plea was ‘properly
and meritoriously taken’, the high court did not spell out what
the consequences
of this conclusion should be. As a general rule, a
plea of
lis alibi pendens
is not an absolute bar to the
proceedings in which such plea has been raised. When a court upholds
a plea of
lis alibi pendens
it has a discretion to stay one or
other of the two actions. A court is vested with such a discretion
because it is prima facie
vexatious to bring two actions in respect
of the same subject matter. In this case, the appellant, by
instituting the high court
action, was self-evidently motivated by a
desire to recover as much as possible of his non-pecuniary loss that
was, until the TPA
took effect, limited to R25 000.
[53]
The high court before which the second action was pending undoubtedly
enjoyed a wide discretion to determine whether
the interests of
justice dictated that the second action should be allowed to
proceed.
[38]
The high court
did not delve into this aspect in its judgment. Instead, it
considered that the special plea of prescription was
‘dispositive
of the matter’. Hence the dismissal of the action with costs.
[54]
For the aforegoing reasons, I find myself in respectful disagreement
with the interpretation ascribed to s 2(1)
(e)
(ii) in the first
judgment. In my view, a scrutiny of s 2 as a coherent whole in the
light of its general tenor and the object of
the TPA, as well as the
circumstances attendant upon its enactment, all support the
interpretation embraced this judgment.
[55]
In the result the following order is made:
1
The appeal is upheld in part with costs.
2
The action is referred back to the high court for trial in accordance
with the principles
set out in this judgment before a differently
constituted court.
3
The order of the high court is set aside and in its place is
substituted the following:
‘
3.1
The defendant’s special plea of lis alibi pendens is upheld.
3.2
The court declines to determine the special plea of prescription as
the facts contained in the agreed
statement of the parties are
inadequately stated for a proper determination to be made.
3.3
The costs associated with the determination of the defendant’s
special pleas shall be costs in
the cause.’
X
M PETSE
ACTING
PRESIDENT
SUPREME
COURT OF APPEAL
APPEARANCES
For
appellant:
N Snellenburg SC
Instructed
by:
Honey
Attorneys, Bloemfontein
For
respondent:
No appearance
[1]
Mvumvu and
Others v Minister of Transport and Another
[2011] ZACC 1
;
2011 (2) SA 473
(CC);
2011 (5) BCLR 488
(CC)
.
[2]
Before its deletion Section 18
(1) read: 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 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 the
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 R25000 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
. . .
(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 of R25000 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.
[3]
Section 23(3)
of the
Road Accident Fund Act 56 of 1996
as amended reads:
Notwithstanding subsection (1), no claim which has been lodged in
terms of
section 24
shall prescribe before the expiry of a period of
five years from the date on which the cause of action arose.
[4]
M. E Sekwere v Road Accident Fund
[2015]
ZAFSHC (FB).
[5]
Klaas v
Road Accident Fund
[2015]
ZAGPPHC 778 (GP)
para
25.
[6]
Tshabalala
v Road Accident Fund
[2015]
ZAGPJHC 281 (GJ) para 27.
[7]
Buthelezi
v Road Accident Fund
[2018]
ZAGPPHC 449 (GP).
[8]
Pithey
v Road Accident Fund
[2014]
ZASCA 55
;
2014 (4) SA 112
(SCA);
[2014] 3 All SA 324
(SCA)
para
18.
[9]
Independent
Institute of Education (Pty) Limited v Kwazulu-Natal Law Society and
Others
[2019]
ZACC 47
;
2020 (2) SA 325
(CC);
(2020 (4) BCLR 495
(CC) para 41.
[10]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA)
para
18.
[11]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC)
para 90.
[12]
Department
of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007]
ZACC 12
;
2007 (10) BCLR 1027
(CC);
2007 (6) SA 199
(CC) para 53.
[13]
Road
Accident Fund and Another v Mdeyide
[2010]
ZACC 18
;
2011 (1) BCLR 1
(CC);
2011 (2) SA 26
(CC) para 8.
[14]
See fn 8.
[15]
See paragraph 1 of the first
judgment.
[16]
Paragraph 18.
[17]
Paragraph 41. See also:
Department of Land
Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (10) BCLR 1027
(CC);
2007 (6) SA 199
(CC) para
53.
[18]
Paragraph 16. See also,
Inland
Revenue v Sturrock Sugar Farms (Pty) Ltd
1965 (1) SA 897
(AD) at 903G-H in which it is stated that ‘. .
. even where the language is unambiguous the purpose of the Act and
other
wider contextual considerations may be invoked in aid of a
proper construction.’
[19]
See, for example, in this
regard:
Aetna
Insurance Co v Minister of Justice
1960
(3) SA 273
(A) at 286 E-F;
Multilateral
Motor Vehicle Accidents Fund v Radebe
[1995] ZASCA 80
;
1996 (2) SA 145
(SCA) at 152 E-I;
Road
Accident Fund v Mtati
[2005]
ZASCA 65
;
[2005] 3 All SA 340
(SCA) para 12;
Bezuidenhout
v Road Accident Fund
;
[2003] 3 All sa 249 (SCA);
2003 (6) SA 61
(SCA) para 7 and the
authorities therein cited.
[20]
Paragraph 16.
[21]
Ibid.
[22]
Ibid.
[23]
Paragraph 17.
[24]
Section 2(1) of the TPA.
[25]
The Regulations were made by the
Minister of Transport and published in GN R770, GG 31249, 21 July
2008.
[26]
The TPA came into effect on 13
February 2013.
[27]
Section 1 of the TPA defines the
‘new Act’ to mean ‘the Road Accident Fund Act,
1996 (Act 56 of 1996), as it
stood from 1 August 2008 onwards’.
[28]
The ‘old Act’ is
defined in s 1 of the TPA to mean ‘the Road Accident Fund Act,
1996 (Act 56 of 1996) as it
stood prior to 1 August 2008’.
[29]
Paragraph 20.
[30]
Paragraph 16.
[31]
Paragraph 17.
[32]
At 436.
[33]
In this case the appellant
claimed damages for non-pecuniary loss in the sum of R600 000 when
the TPA came into operation.
[34]
Dadoo Ltd and Others v
Krugersdorp Municipal Council
1920 AD 530
at 543.
[35]
Regulation 3, to the extent
relevant, reads:
‘
3
Assessment of serious injury in terms of section 17(1A)
(1)
(a)
A third party who wishes to claim compensation for non-pecuniary
loss shall submit himself or herself
to an assessment by a medical
practitioner in accordance with these Regulations.
(b)
The medical practitioner shall assess whether the third party’s
injury is serious in
accordance with the following method:
(i)
The Minister may publish in the
Gazette
, after consultation
with the Minister of Health, a list of injuries which are for
purposes of section 17 of the Act not to be
regarded as serious
injuries and no injury shall be assessed as serious if that injury
meets the description of an injury which
appears on the list.
(ii)
If the injury resulted in 30 per cent or more Impairment
of the
Whole Person as provided in the AMA Guides, the injury shall be
assessed as serious.
(iii)
An injury which does not result in 30 per cent or more Impairment
of
the Whole Person may only be assessed as serious if that injury:
(aa)
resulted in a serious long-term impairment or loss of a body
function;
(bb)
constitutes permanent serious disfigurement;
(cc)
resulted in severe long-term mental or severe long-term behavioural
disturbance
or disorder; or
(dd)
resulted in loss of a foetus.
. . .
(3)
(a)
A third party whose injury has been assessed in terms of these
Regulations shall obtain from the
medical practitioner concerned a
serious injury assessment report.
. . .
(c)
The Fund or an agent shall only be obliged to compensate a third
party for non-pecuniary
loss as provided in the Act if a claim is
supported by a serious injury assessment report submitted in terms
of the Act and these
Regulations and the Fund or an agent is
satisfied that the injury has been correctly assessed as serious in
terms of the method
provided in these Regulations.
[36]
Paragraph 22.
[37]
Paragraph 8.
[38]
See in this regard:
Cook
and Others v Muller
[1973] 2 All SA 34
(N);
1973 (2) SA 240
(N) at E-G;
Sikatele
and Others v Sikatele and Others
[1996]
1 All SA 445
(Tk) at 448.