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[2007] ZASCA 57
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Road Accident Fund v Monjane (295/06) [2007] ZASCA 57; [2007] 4 All SA 987 (SCA) ; 2010 (3) SA 641 (SCA); (2007) 28 ILJ 2516 (SCA) (18 May 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 295/06
In the matter
between:
ROAD ACCIDENT FUND
............................... Appellant
and
PEDRO ERNESTO MONJANE
............................... Respondent
Coram : SCOTT,
CAMERON, CLOETE, MAYA JJA
et
THERON AJA
Date
of Hearing : 4 MAY 2007
Date
of delivery : 18 MAY 2007
Summary: An employee who sustains an ‘occupational
injury’ as defined in Act 130 of 1993 will have no claim under
the
Road Accident Fund Act 56 of 1996
if the wrongdoer is his or her
employer.
Neutral Citation: This judgment may be referred to as
Road Accident Fund v Monjane
[2007] SCA 57 RSA.
JUDGMENT
________________________________________________________________
SCOTT JA/…
SCOTT
JA:
[1] The appellant is the Road Accident Fund, a juristic
person established in terms of
s 2
of the Road Accident Fund Act 56
of 1996 (‘the RAF Act'). The respondent (the plaintiff in the
court below) instituted action
in the Pretoria High Court against the
Fund for the payment of damages in the sum of R417 600 in respect of
injuries he sustained
in consequence of the negligent driving of a
motor vehicle by Mr Michael Duarte. The circumstances in which his
injuries were sustained
are set out in paragraph 3 of his amended
particulars of claim, which reads:
‘
On
or about the 22
nd
day of May 1997 and at
approximately 11 am and at the Krugersdorp Market, Krugersdorp,
Gauteng Province, the plaintiff was engaged
in the loading of
vegetables on a certain motor vehicle with registration number
GZT056T driven by one Michael Duarte when the said
driver suddenly
and without warning and with reckless disregard for the presence and
safety of the plaintiff pulled away or put his
said truck in motion
causing the plaintiff to fall from the said vehicle.’
The Fund filed a special plea in which it averred that
on 22 May 1997 the plaintiff’s employer was the driver of the
vehicle
concerned and that even if the plaintiff’s injuries
were caused by the former’s negligent driving the Fund was not
liable
to the respondent in law –
‘
.
. . because in terms of
Section 19(a)
of the
Road Accident Fund Act,
Act
56 of 1996 [the Fund] shall not be obliged to compensate any
person for any loss or damage for which neither the driver nor the
owner
of the motor vehicle concerned would have been liable [and] in
terms of
Section 35(1)
of the Compensation for Occupational Injuries
and Diseases Act 130 of 1993, no action shall lie by the Plaintiff
(as employee) against
the said insured driver (the employer).’
The matter came before Shongwe J who, at the request of
the parties, ordered that the special plea be dealt with first. No
evidence
was adduced but the parties reached agreement on the facts
necessary for the determination of the special plea. They were: (a)
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);
(b) that
he was in the employ of Duarte and was carrying out his duties in
pursuance of that employment when the accident occurred;
and (c) that
Duarte was solely to blame for the accident. After hearing argument
and reserving judgment Shongwe J dismissed the special
plea with
costs, but subsequently granted the Fund leave to appeal to this
court.
[2] Before dealing with the issues raised in the special
plea it is necessary to outline the relevant statutory provisions.
[3] Section 17 of the RAF Act imposes on the Fund (or an
agent) an obligation ‘to compensate any person (the third
party) for
any loss or damage which the third party has suffered as a
result of any bodily injury to himself or herself . . . caused by or
arising
from the driving of a motor vehicle by any person at any
place within the Republic, if the injury or death is due to the
negligence
or other wrongful act of the driver or of the owner of the
motor vehicle . . .’ . Where the identity of the driver or
owner
has been established (as in the present case) this obligation
is stated in s 17(1)(a) to be ‘subject to this Act’. The
sections that follow contain a number of qualifications to the
general obligation imposed in s 17.
[4] In terms of s 18(1) and (2) the Fund’s
liability is limited in certain specified circumstances where the
third party was
at the time of the occurrence being conveyed in or on
the motor vehicle concerned. Section 18(2) is relevant. It provides
for a limitation
of the Fund’s liability:
‘
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’.
[5] In terms of s 19 the liability of the Fund (or
agent), as contemplated in s 17, is excluded altogether in certain
circumstances.
Of relevance is s 19(a). It provides that the Fund
shall not be obliged to compensate any person in terms of s 17 for
loss or damage
–
‘
for
which neither the driver nor the owner of the motor vehicle concerned
would have been liable but for section 21.’
Section 21, in turn, provides that when a third party is
entitled under section 17 to claim from the Fund or agent, ‘that
third
party may not claim compensation in respect of that loss or
damage from the owner or from the person who so drove the vehicle, .
. . unless the Fund or such agent is unable to pay the compensation’.
[6] Section 35(1) of the Compensation for Occupational
Injuries and Diseases Act 130 of 1993 (‘COIDA’) precludes
an employee
from recovering damages from his or her employer in
respect of an ‘occupational injury’. The section reads:
‘
No
action shall lie by an employee or any dependant of any employee for
the recovery of damages in respect of any occupational injury
or
disease resulting in the disablement or death of such employee
against such employee’s 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.’
‘
Occupational injury’ is
defined in s 1 to mean ‘a personal injury sustained as a result
of an accident’. ‘Accident’,
in turn, 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 the
employee.’
[7] Against the background I turn to the contentions of
the parties. The appellant’s defence raised in the special plea
is simply
that on the basis of the agreed facts it is not liable to
the respondent (ie the third party) for compensation in terms of s 17
of
the RAF Act because, by virtue of s 35(1) of COIDA,
the
respondent’s employer, Duarte, being the driver whose
negligence caused the accident, would not have been liable to the
respondent; and in terms of s 19(a) of the RAF Act, the Fund is 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.
[8] As I understand the contention advanced on behalf of
the respondent – and seemingly accepted by the court
a
quo
–
it is this. Section 18(2) of the
RAF Act does not create a new right of action against the Fund; it
serves merely to qualify or limit
the Fund’s liability under s
17. That limitation, it is argued, relates 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. I pause to observe that this argument would no doubt be
correct if it were not for
the provisions of s 19(a), read with s
35(1) of COIDA. The respondent contends, 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).
Accordingly, so it was contended, s 19(a) had to be strictly
construed so as not
to exclude the liability of the Fund in a case
such as the present.
[9] The argument is unsound. The effect of s 18(2), when
read with s 19(a) (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 is limited but
not precluded. 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(a), read with s 35(1)
of COIDA, is therefore not to render s 18(2) meaningless.
[10] The same argument which was advanced by the
respondent in the present case was advanced in
Mphosi
v Central Board for Co-operative Insurance Ltd
1
in relation to para (aa) of the second proviso to s
11(1) of the Motor Vehicle Insurance Act 29 of 1942, being the
equivalent of the
present s 18(2) of the RAF Act.
2
In rejecting it, Botha JA at 646B gave as an example of
when the paragraph would be applicable, the case where A, the owner
of the
insured motor vehicle, lets the vehicle to B, an employer of
labour, to transport his workers from one place to another, and one
or more of the workers are injured in an accident arising out of the
negligence of the owner of the vehicle for having let a dangerously
defective vehicle to B. In such a case (as the learned judge pointed
out in relation to the provisions of the 1942 Act) the injured
workers would be entitled to compensation under COIDA but their
common law action for damages would not be precluded by s 35(1) of
that Act. They would accordingly be entitled to proceed against the
Fund, but subject to the limitation imposed by s 18(2) of the
RAF
Act.
[11] It follows that the respondent’s answer to
the special plea cannot prevail and the appeal must succeed.
[12] It is no doubt so 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 is 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.
But COIDA substitutes a
system which has advantages for an employee not
available at common law.
3
The RAF Act, like COIDA, constitutes social legislation
but it caters for a different situation. Inevitably, as in the
present case,
there will be some overlapping of the areas covered by
each and provision is made for an injured party in certain
circumstances to
claim under both Acts.
4
But ultimately, however, a line must be drawn and where
that is to be is essentially a question of policy for the legislature
to decide.
Section 19(a) of the RAF Act, read with s 35(1) of COIDA,
indicates where that line has been drawn: an employee who sustains an
‘occupational
injury’ in the context of a motor accident
will have no claim under the RAF Act if the wrongdoer is his or her
employer. This
was recognised by this court as long ago as 1974 in
Mphosi’s
case.
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. Significantly, the
legislature has in a series of subsequent enactments
retained in
substance the statutory provisions upon which
Mphosi’s
case was decided.
5
It must be accepted, therefore, that the construction
placed upon them correctly reflects the policy of the legislature.
[13] The appeal is upheld with costs. The order of the
court
a quo
is set
aside and the following order is substituted in its place:
‘
The special plea is upheld
with costs.’
__________
D G
SCOTT
JUDGE
OF APPEAL
CONCUR:
CAMERON
JA
CLOETE
JA
MAYA JA
THERON
AJA
1
1974
(4) SA 633
(A).
2
The
first proviso to s 11(1) of the 1942 Act is the equivalent of the
present s 19(a); s 13 of the 1942 Act is the equivalent of
the
present s 21 and s 7(a) of the Workmen’s Compensation Act 30
of 1941 is the equivalent of s 35(1) of COIDA.
3
The
constitutionality of s 35(1) of COIDA was upheld in
Jooste
v Score Supermarket Trading (Pty) Ltd
1999
(2) SA 1 (CC).
4
See
eg s 18 (2) of the RAF Act and s 36 of COIDA.
5
Compulsory
Motor Vehicle Insurance Act 56 of 1976; Motor Vehicle Accidents Act
84 of 1986; Multilateral Motor Vehicle Accidents
Fund Act 93 of
1989.