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[2014] ZAFSHC 249
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Da Silva v Road Accident Fund and Another (1349/2008) [2014] ZAFSHC 249 (24 January 2014)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 1349/2008
In
the matter between:-
VENESSA
DA
SILVA
Plaintiff
and
ROAD
ACCIDENT
FUND
First Defendant
THE
MINISTER OF TRANSPORT
Second Defendant
HEARD
ON:
21 NOVEMBER 2013
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
24 JANUARIE 2014
[1]
In these proceedings, the applicant seeks a declaration of
constitutional invalidity together with allied
relief
.
The application to have the impugned statutory provision declared
inconsistent with the constitution, to have it invalidated
and to
have the consequential relief, following upon the declaration of
invalidity, granted – is not opposed by either of
the two
respondents.
[2]
Although the respondents do not oppose the grant of the relief
sought, I am nonetheless required to supply
reasons
when granting the declaration of invalidity –
South
African Liquor Traders Association v Chairperson, Gauteng Liquor
Board & Others
2009 (1) SA 656
(CC) at [15] where the court held that it was
undesirable for a court of first instance to give no reasons.
Therefore, the
purpose of this judgment is to fulfil that
obligation.
[3]
The nature and
purpose
of this application need to be outlined upfront. The applicant
is the plaintiff in an action pending in this court.
The first
and the second respondents are the first and the second defendant’s
respectively in that action. At the time
of the road accident
which precipitated the action she instituted against the respondents,
she was a social passenger in a family
car driven by her spouse.
The car collided with an animal. It is her case that the
exclusive negligence of her spouse
was the sole cause of the
accident. She averred further in her summons that she sustained
severe bodily injuries in the accident.
She added that as a
result of such injuries she incurred substantial past medical
expenses apart from her other damages.
[4]
The action is defended. The essence of the defence raised is
that she has no claim. The defendants have simply invoked
the
prohibitive statutory provisions contained in
section 19(b)(ii)
of
the
Road Accident Fund Act, 56 of 1996
. That section, as it
stood at the time of the applicant’s accident, absolutely
excluded any claim to compensation arising
out of such circumstances.
[5]
Meanwhile
section 19(b)(ii)
of the
Road Accident Fund Act, 56 of 1996
has since been repealed by
section 8
of the
Road Accident Fund
Amendment Act, 19 of 2005
. The latter came into force on 1
August 2008, some two years after the accident in which the applicant
was involved.
[6]
However, notwithstanding the repeal,
section 8
Road Accident Fund
Amendment Act 19 of 2005
specifically provides that any claim for
compensation under
section 17
Road Accident Fund Act 56 of 1996
in
respect of which the cause of action arose prior to 1 August 2008
must be dealt with as if the 2005 Amendment Act had not taken
effect. In the result, it follows that the applicant has no
valid claim against the first respondent despite her injuries
and
despite the fact that she was not to blame for the injuries she
sustained. She was injured before the cut-off date.
[7]
In her pending
action
,
the applicant challenges the constitutional validity of section
19(b)(ii), Act No 56 of 1996, the impugned statutory provisions,
as
it stood prior to 1 August 2008. The thrust of her challenge is
that the section violates her fundamental right to equality
as
enshrined in section 9 of the Constitution. She, therefore,
seeks an order declaring the impugned provision inconsistent
with the
constitution and thus invalid.
[8]
The matter was enrolled for a three day hearing as from 6 November
2013. The peculiar circumstances of the accident, the
crucial
averments and the substantive merits are not in dispute. The
parties are all agreed that, but for the statutory exclusion
in
question, the applicant would be entitled to compensation in the sum
of R4 014 079,90 together with an undertaking
to pay her
future medical expenses.
[9]
Consequently the only
issue
that arises in the instant matter is whether the applicant’s
claim against the first respondent is justifiably excluded by
virtue
of the operation of the impugned provision, or whether she is
entitled to the order of invalidity sought, in which event
her claim
statutority excluded would be constitutionally recognised. The
only live issue which thus remains to be determined
relates to the
legal question pertaining to the constitutional validity of the
impugned provision.
[10]
In the light of the above, the parties mutually agreed to have the
action removed from the high court trial roll and also to
have the
constitutional issue dealt with by way of motion proceedings, hence
the current application was launched on 14 November
2013.
[11]
Before I proceed any further, I deem it prudent to outline the
fourfold
structure
of this judgment. I propose to go about in this way:
Firstly, I set out the background facts. Secondly I explain
the
legislative matrix as at the time of the accident and the subsequent
legislative dynamics. Thirdly I deal with the grounds
on which
the impugned, provision is challenged. Fourthly, I conclude by
considering the appropriateness of the remedy sought.
[12]
The factual matrix.
The
applicant was born on 3 June 1974 she is presently 39 years of age,
she was 32 years of age at the time of the accident.
I was not
in a position to accurately ascertain the level of her formal
education. She is a married woman. Her husband
is a
gentleman by the name of Victor Da Silva. She now lives at
Edenvale in Johannesburg in Gauteng. She is the mother
to two
young girls. Her daughters are 11 and 9 years of age.
[13]
Prior to her misfortune, she was gainfully employed in Durban as a
personal assistant to an insurance broker. She earned
approximately R7 800,00 per month then. Her earnings
enabled her to contribute meaningfully to her own needs and those
of
her family. Her work was meaningful and enjoyable to her as a
person.
[14]
The applicant was travelling as a social passenger in a motor vehicle
which was driven by her husband. The accident occurred
near
Kestell in the Free State Province on 29 April 2006. It
happened during night time. The car collided with a horse
which
emerged from the side of the road. The road accident was
occasioned by the sole negligent driving of her husband.
As a
result of the ensuing physical impact, her husband lost control over
the car. The car went off the road. She was
crushed
inside the car. The roof the wrecked car pressed down on her
head.
[15]
From the scene of the accident she was rushed to Bethlehem Medi
Clinic. She was later airlifted from there to Durban
where she
was admitted to St Augustine Hospital. She resided in Durban at
the time. On admission to St Augustine Hospital
her state of
consciousness was measured. The reading was ± 11.5 out
of 15 on the glascow coma scale. It was
established that she
had sustained multiple skull fractures.
[16]
Her head injuries required major reconstructive surgery to the
frontal lope of her skull and her right orbital area.
She then
underwent, among others, a right frontal temporal craniotomy.
The surgical operation became necessary to elevate
and repair
multiple frontal, temporal and orbital fractures. She was also
ventilated for some time. After that initial
craniotomy she
needed further surgery. It took the form of the left frontal
burhole for the insertion of an external ventricular
drain. She
was hospitalised for eight weeks following the accident. She
spent more than seven of those weeks in the
intensive care unit.
[17]
Her pituitary gland was damaged in the accident. As a result
she now suffers from diabetes insipidus, a condition which
requires
her to be on medication for the rest of her life. The injury
has also largely contributed to her uncontrolled weight
gain.
These then are some of the adverse effects of the accident. Her
past medical expenses alone have exceeded R500 000,00.
She
suffered traumatic amnesia as a result of the accident. What
she recounted about her accident in her founding affidavit,
is
derived from what her husband told her and what is apparent from her
medical records as well as her expert assessment reports.
[18]
The serious head injuries she sustained in the accident rendered her
unemployable in her previous capacity. More than
a year after
the accident she was still completely incapacitated. Her
previous employer was no longer prepared to keep her
position open
any longer. She was consequently laid off.
[19]
During April 2009 the family moved from Durban to settle in
Johannesburg. She found it very difficult to find employment.
Eventually she secured a secretarial position at a lower salary than
her pre-accident salary. She earned R6 500.
Her new
employer was continually dissatisfied with the quality of her work.
As a result she lost that work in December 2011.
[20]
She is currently in the employ of a school. She works a few
hours only in the afternoon. She earns R2 000.00 per
month
since January 2013 as a tuckshop assistant. She is paid out of
the school charity fund. It will be readily appreciated
that
she is currently in a position that amounts to nothing more than a
sheltered form of employment. Although at times she
struggles
with the pressures of her present job position, by and large she
manages as best she can.
[21]
The occupational therapists and individual psychologists, on both
sides of the adversarial litigation line, who have examined
the
applicant, have concluded that she can no longer work in the same
capacity as she did before the accident.
[22]
By virtue of a great variety of medical assessment reports done by
medical experts, the parties are agreed that but for the
legislative
impediment which is at the heart of the applicant’s challenge
in order to have a declaration of constitutional
invalidity, she
would have been entitled to receive from the first respondent
compensation in the amount previously specified together
with an
undertaking to pay future medical expenses in terms of section 14(4)
Road Accident Fund Act 56 of 1996
.
[23]
The applicant’s post injury conditions have been assessed by a
range of professional experts acting on her behalf and
those acting
on behalf of the first respondent. the findings of those
experts largely concur that she has suffered brain
injury so severe
that it has occasioned lasting deficits which cannot be cured.
[24]
The
first dimension of the legislative matrix at the time of the
plaintiff’s accident
– The old 1996 legislation applied to all claims for
compensation (lodged by victims of road accidents) arising out of the
driving of motor vehicles.
Section 17(1)(a)
Act 56 of 1996
provided:
Section
17 – Liability of Fund and agents.
“
(1)
The Fund or an agent shall-
(a)
subject
to this Act, in the case of a claim for compensation under this
section arising from the driving of a motor vehicle where
the
identity of the owner or the driver thereof has been established;
(b)
…
be
obliged 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 of herself or the death of or any bodily injury to
any other person, 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 or of his or her employee in the
performance of the employee’s duties
as employee.”
[25]
In this instance, section 17(1)(a) has to be read together with
section 19(b)(ii) which provided:
“
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 –
19(a)
…..
19(b)
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 –
(i)
…..
(ii)
is a person referred to in section 18(1)(b) and a member of the
household, or responsible in law for the maintenance,
of the driver
of the motor vehicle concerned, and was being conveyed in or on the
motor vehicle concerned; or”
[26]
The practical effect of section 19(b)(ii), the impugned provision,
was to exclude certain claims for compensation from been
lodged
against the Road Accident Fund by the victims of the road accidents.
The exclusions applied to claims which arose
in the following
circumstances:
Where
the claimant was a social passenger in the offending vehicle provided
the driver of the vehicle in which the social passenger
was
travelling was entirely to blame for the accident and provided such
driver was a member of the social passenger’s household
or such
driver was a person who owed the social passenger a legal duty of
support.
[27]
It will be readily appreciated that the statutory exclusion in terms
of section 19(b)(ii) did not apply to a driver (social
passenger) in
circumstances where two or more vehicles were involved in the same
road accident which was occasioned by the combined
contributory
negligent driving of at least two drivers – section 17 read
together with section 19.
[28]
I point out that section 18 placed a monetary limitation of R25
000.00 on compensation claims of six different categories of
passengers where fault, on the part of the driver or the owner of the
vehicle in which the affected passenger was travelling, was,
was the
sole cause of the road accident. Those passenger categories
with limited claims were:
“
27.1
passengers conveyed for reward;
27.2
passengers carried for the purposes of a lift club;
27.3
passengers conveyed in the course of the lawful business of the owner
of the vehicle;
27.4
passengers who were employees of the driver or owner of the vehicle
and were being transported in the course
of their employment;
27.5
passengers who were conveyed under circumstances other than those
referred to in section 18(1)(a);
27.6
employees who are entitled to compensation in terms of the
Compensation of Occupational Injuries and Diseases
Act.”
[29]
Apart from those total exclusions and relative limitations, the rest
of the victims of road accidents were entitled to claim
full and
proper compensation from the Road Accident Fund in respect of the
injuries and the losses they sustained and suffered
as a result of
the road accidents. Their right to compensation entitled them
to claim past medical expenses, past hospital
expenses, past loss of
earnings, future medical expenses, future hospital expenses, future
loss of earnings, general damages for
pain, suffering and future loss
of amenities of life. The claimant is usually furnished with a
written undertaking to cover
future medical and hospital expenses to
be incurred in connection with the treatment of the injuries
sustained in the accident.
[30]
The
second dimension of the legislature matrix introduced by the
Road
Accident Fund Amendment Act 19 of 2005
.
This national legislation came into operation on 1 August 2008.
The amendment was indicative of a recognition, not
only by the
responsible cabinet minister but by the government as a collective,
that the absolute exclusions and the relative limitations
previously
outlined were not in keeping with certain core values enshrined in
the bill of rights and that they were thus unconstitutional.
[31]
The purpose of the amendment was achieved in two ways: Firstly,
section 18(1)
Act 56 of 1996 was deleted and substituted with
subsection 2(a). The effect of the 2005 amendment was that the
relative limitations
as imposed by the old 1996 legislation as they
previously read were abolished. Secondly, section
19 Act 56
of
1996 was amended by deleting the impugned provision.
[32]
At the heart of the applicant’s problem is section 12 Amendment
Act 19 of 2005. Notwithstanding the deletion of
the exclusions
in terms of section
19 Act 56
of 1996, section 12 Amendment Act 19 of
2005 specifically provides that:
“
Any
claim for compensation under Section 17 of the Principal Act in
respect of which the cause of action arose prior to the date
on which
this Act took effect must be dealt with as if this Act had not taken
effect.”
The
words “principal act” must be understood to be reference
to the old legislation, Act 56 of 1996. The effect
of section
12, therefore, is that the applicant is not meaningfully assisted by
the 2005 legislative amendment. It follows,
therefore, that her
claim is still excluded unless the old section 19(b)(ii) as it read
prior to its repeal by the 2005 legislative
amendment is declared to
be inconsistent with the constitution and thus invalid. As far
as the applicant was concerned the
2005 legislative intervention was
not adequately curative.
[33]
The
third dimension of the legislative matrix was in the form of
transitional measures.
The
Road Accident Fund (Transitional Provisions) Act 15 of 2012
came
into force on 13 February 2012. The purpose of the transitional
legislation is recorded in the preamble as being:
“…
to provide transitional measures in
respect of certain categories of third parties whose claims were
limited under the RAFA, 1996,
prior to 1 August 2008 and to provide
for matters incidental thereto.”
The
importance of the date, 1 August 2008, lies in the fact that that was
the date on which the old 1996 legislation was substantially
amended
by the 2005 amendment statute.
[34]
The transitional statute puts in place some arrangements for people
referred to as third parties. The phrase “third
party”
is restrictively defined as a person who, firstly, has a right to
claim compensation from the Road Accident Fund in
terms of
section 17
Act 56 of 1996; secondly, whose claim is subject to the limitations
imposed by section 18(1) or section 18(2) of that old statute
and
thirdly, whose claim has, upon this transitional statute taking
effect being 13 February 2013, not prescribed or been finally
determined by settlement or judgment. Those then were the
targeted victims of the transitional measures.
[35]
Section 2 of Transitional Provisions Act 19 of 2012 provides as
follows as regards third parties:
“
(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 000.00, 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.”
[36]
I hasten to point out that the aforegoing transitional provision,
section 2 of the new 2012 statute, made no reference whatsoever
to
absolute exclusions in terms of section 19(b)(ii) of the old 1996
statute. Consequently the legislative plight of social
passengers such as the applicant still remained unchanged although
section 19(b)(ii) of the old 1996 statute was repealed seven
years
earlier by the 2005 amendment statute. I have to stress the
point in order to drive the message home: The Transitional
Provisions Act 15 of 2012 contained no remedial transitional
arrangements for victims of road accidents whose claims were
absolutely
excluded as invalid in terms of section 19(b)(ii) Act 56
of 1996.
[37]
By virtue of the narrow definition of a “third party” as
contained in section
2 Act 15
of 2012, those transitional
arrangements only remedied the statutory plight of those passengers
whose relative rights to claim
compensation were subject to the
monetary ceiling imposed by subsection (1) or subsection (2) of
section 18. On the contrary
social passengers such as the
applicant are still completely disqualified and absolutely excluded
from accessing any benefits whatsoever
provided by the social
legislation to the rest of the victims of road accidents. It is
the applicant’s contention that
such a legal situation is
constitutionally flawed and untenable. Those then are the
shortcomings of the legislative matrix.
The 2005 and 2012
legislative measures though designed to protect and to advance
interests of certain categories of victims of
the road accidents
previously disadvantaged by unfair statutory discrimination, did not
fully promote the achievement of equality
in that sphere.
[38]
Unconstitutionality
of the impugned provision
– It is the applicant’s case that the impugned statutory
provision is inconsistent with the constitution and, therefore,
invalid on the ground that it violates the equality guarantee
contained in section 9 of the constitution. To that issue I
now
turn.
[39]
Section 9 of the constitution guarantees that:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality,
legislative
and other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination
may be
taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including
race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience,
belief, culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection
(3).
National legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it is established that the
discrimination is fair.”
[40]
It is trite that proof of an infringement of either section 9(1) or
section 9(3) of the constitution will almost invariably
justify a
declaration of constitutional invalidity. The two subsections
outlaw unequal treatment and unfair discrimination
of persons
respectively. Therefore, it becomes imperative to consider
whether the differentiation and discrimination are
unfair and
unjustifiable.
[41]
Ms Annandale, counsel for the applicant, submitted that section
19(b)(ii)
Road Accident Fund Act 56 of 1996
, as it read prior to 1
August 2008, is inconsistent with the constitution and for that
reason invalid.
[42]
The decision in Mvumvu and Others v Minister of Transport and Another
2011 (2) SA 473
(CC) which was handed down on 12 February 2011 is
instructive. In that case the Constitutional Court finally
confirmed a
provisional declaration of invalidity granted by the
Western Cape High Court in respect of
sections 18(1)(a)(i)
,
section
18(1)(b)
and
section 18(2)
of the old Act 56 of 1996 as it read
before 1 August 2008. The court found that the monetary capping
provisions contained
in those subsections of section 18 constituted a
violation of section 9(3) of the constitution. Those capping
provisions
in terms of section 18 had virtually the same effect in
respect of categories of persons or passengers adversely affected by
the
absolute exclusions in terms of section 19(b)(ii) of the old Act
56 of 1996.
[43]
Given the similarity in effect between the relative capping
limitation imposed by section 18 and the absolute exclusion imposed
by section 19(b)(ii), the following observations of the
Constitutional Court in the Mvumvu case are quite apposite to the
current
matter, in my view:
“
44.1
The
Road Accident Fund Act constitutes
social security legislation
whose primary object has been described as being to give the greatest
possible protection to persons
who have suffered loss through a
negligent or unlawful act on the part of the driver or owner of the
vehicle and the cap on certain
claims undermines this purpose.
44.2
Section 18
manifestly had a disparate impact as it targeted in the
main those persons who used public transport and did not apply where
two
or more vehicles were involved and no less than two drivers
contributed to the accident.
44.3
It could not be gainsaid that by placing the R25 000.00 cap on
recoverable compensation, such limiting provisions treated
certain
victims differently from others whose claims were not limited.
44.4
The nature of the discrimination was indirect and operated against
mainly black people who constitute the majority of
persons in South
Africa who utilize public transport. Those provisions therefore
indirectly discriminated against black people
in a manner
disproportionate to other races.
44.5
This constituted discrimination on the basis of race which is a
specified ground in section 9(3) of the Constitution
and was
consequently presumptively unfair.
44.6
The provisions at issue in Mvumvu also discriminated on a basis other
than race as they affected the applicants and other
similarly
situated victims adversely when compared to claimants whose claims
were not limited.
44.7
Where the victims were workers whose bodily injuries rendered them
unemployable, the cap denied them compensation for
the loss of
capacity to work despite the fact that they played no role in causing
the accident whilst other victims who were also
passengers like the
applicants were entitled to enjoy full compensation for their loss
only because they fell outside of the targeted
categories. This
was manifestly unfair.”
[44]
I am of the view that all those considerations apply with even
greater force to those completely excluded in terms of section
19(b)(ii) and denied benefits of the social security legislation. The
section discriminates in a strikingly and similarly arbitrary
way
against certain categories of persons. It does so in a manner
which is inconsistent with both section 9(1) and section
9(3) of the
constitution. Unlike section 18 which relatively limits
passenger claims, section 19 completely passenger claims
the targeted
passengers. There lies the harshness and arbitrariness of the
impugned provisions. It does not get worse
than that anywhere
in the old statute I am here grappling with. It has caused
untold hardships in the past. It is hard
to conceive any
equitable rationale for such discrimination and differentiation.
In my view it was and still is unjustifiable
treatment – this
presumptively unfair.
[45]
Whilst in the Mvumvu decision the court found that the relative caps
imposed in terms of section 18 predominantly discriminated
against
blacks as a particular race – the absolute exclusions imposed
in terms of section 19 predominantly discriminates
against persons on
the grounds of marital status. It specifically targets persons
linked together by marital relationship
from which creates duties of
support ex lege.
[46]
Section 19 further discriminates, on the grounds of sex, indirectly
but still yet predominantly against persons using the road.
In
this country, a common feature of the road is generally that where
families travel together, almost invariably, men are the
drivers and
women passengers. As a result of this overwhelming culture of
travelling section 19 has a greater adverse impact
on women than
men.
[47]
This sort of discrimination is plainly arbitrary. Consider this
scenario. A car was driven by X, a man. There
were two
women passengers in the car, his wife Y and her friend Z. They
got involved in an accident before 1 August 2008
as a result of the
exclusive negligence of X. The two passengers sustained serious
bodily injuries. On the one hand
Y would have virtually no
claim because she was the negligent man’s wife. On the
other hand Z would now, after 1 August
2008 be entitled to claim full
compensation because there was no marital relationship between her
and the negligent driver, X.
I can think of no justification
that could possibly rationalise such tenuous differentiation between
the two women. Such
an unequal treatment is fundamentally
unfair.
[48]
More often than not children, like their mothers, are passengers in
vehicles driven by their fathers. Generally, most
of them are
too young to drive or are still unlicensed to drive. The
impugned section 19 also discriminates predominantly
against children
on the grounds of age. Children who are unable to drive are
routinely transported in vehicles driven by
a person who heads the
family household or a person who owes them a duty of support.
Such persons are customarily fathers.
However, even where such
persons are mothers, the adverse legal consequences of section 19 are
the same to children. The
legal position is simple. It is
this: If a child was injured in a road accident before 1 August
2008 as a result of
the negligent driving by a parent – then an
injured child, has no claim against the Road Accident Fund.
[49]
On the contrary, his friend Y, a passenger in the same car would now
after 1 August 2008 have a valid and unlimited claim.
The child
X is therefore discriminated against not only on the ground of age
but birth as well.
[50]
Whereas the constitution guarantees everyone the right to equality
before the law, as well as the right to equal protection
and equal
benefit of the law – the impugned statutory provision denies
those excluded passengers all those fundamental rights.
Those
innocent passengers who bear no delictual responsibility for the
accident have their claims either absolutely excluded or
drastically
reduced for reasons that have nothing to do with their actions,
conduct or culpability. The entire arbitrary
nature of the
discrimination(s) constituted by the exclusions imposed by the
impugned provision is, in my view, manifestly contrary
and indeed
inimical to the guarantee and prohibition embodied in section 9(1)
and section 9(3) respectively of the constitution.
[51]
I am also persuaded by Ms Annandale’s submission that the
impugned provision also violates the applicant’s fundamental
rights to dignity as enshrined in section 10 of the constitution.
Moreover, the impugned provision also violates her fundamental
rights
to health care services and social security. Such rights are
constitutionally guaranteed by section 27.
[52]
On the facts I am inclined to conclude that the impugned provision,
in other words, section 19(b)(ii) Act 56 of 1986, read
as it stood
prior to 1 August 2008, is indeed inconsistent with the constitution,
something which the supreme law does not countenance.
Accordingly I hold the view, and it is a very firm view, that it
ought to be declared constitutionally invalid.
[53]
The
appropriate remedy
– It is a vitally important aspect of the matter. The
range of a proposed remedy has to be appropriate. A rangeless
remedy may have drastically crippling impact on the coffers of the
first respondent and financially embarrass the second respondent
as
well. In Mvumvu’s case the Constitutional Court suspended
the declaration of invalidity for a specified period in
order to
enable parliament to cure the statutory defects. On the
strength of available evidence the Constitutional Court
was of the
view that an unlimited retrospective order of invalidity was likely
to have a crippling effect on the operations of
the Road Accident
Fund. The court took a twofold view of the appropriate remedy.
In the first place the court determined
that parliament rather the
court itself was best suited to ascertain the extent of appropriate
compensation to which the applicants
in that particular case were
entitled. In the second place the court also determined that
parliament itself needed to find
a curatively appropriate remedy for
the inequality which the old 1996 scheme continued to perpetuate by
virtue of section 12 of
Amendment Act 19 of 2005 – vide Mvumvu,
supra, at [53].
[54]
It was in an attempt to give effect to the injunction of the
Constitutional Court and in an effort to meet the terms of the
invalidating order that parliament enacted the Transitional
Provisions Act 15 of 2012. Lamentably and despite the
transitional
measures introduced by parliament, the transitional
measures did not create any curative remedy for the anomalies,
inequalities
and unfair discriminations that were imposed by the
section 19(b)(ii) Act 56 of 1996 that has since been repealed by the
Amendment
Act 19 of 2005. The transitional measures enacted by
the Transitional Provisions Act 15 of 2012 were restricted to those
passengers whose claims had been relatively capped by section 18, but
not those whose claims had always been completely excluded
by section
19 of the old statute.
[55]
It seems to me that if the applicant and other claimants in a
position similar to hers, were to be afforded the protection
similar
to that provided to section 18 passengers by the Transitional
Provisions Act, that would prevent further inequalities of
legislative treatment between those passenger victims whose claims
are completely excluded and those passenger victims whose claims
are
merely capped. In the case of the latter category of passenger
victims those old capping provisions in terms of section
18 have
already been found to be inconsistent with the constitution and
declared invalid.
[56]
The transitional measures introduced for the benefit of passenger
victims whose claims were previously capped and were thereby
disadvantaged, have been chosen by parliament. Now if those
same measures were to be extended to those passenger victims
who have
all along been disadvantaged, differently treated for all the wrong
reasons, that would prevent the court from intruding
into matters of
executive policy or from usurping the legislative functions of
parliament.
[57]
In that event, the probable financial burden on the Road Accident
Fund would be substantially alleviated by a remedy whose
range would
only be those passenger victims whose claims were previously
precluded by section 19(b)(ii) Act 56 of 1996. Given
the
agreement already reached by the parties regarding the applicant’s
quantum of compensation to which she would have been
entitled but for
the exclusion created by the impugned provision, I am satisfied that
the order sought in prayer 4 of the notice
of motion is an
appropriate relief in this particular matter.
[57]
The applicant had no choice but to litigate in order to vindicate her
constitutional rights. In the light of my inclination
to
provisionally strike down the impugned provision, I am of the view
that she is entitled to the fruit of her success. The
declaration of invalidity would also benefit all those in a similar
legislative predicament as hers. The matter is complex.
Moreover it is of great importance to the general public. That
being the case, the employment of two counsels was warranted.
[58]
Accordingly I make the following order:
58.1
It is declared that section 19(b)(ii) of the Road Accident Fund 56 of
1996, as it read prior to 1 August 2008, is inconsistent
with the
Constitution and invalid.
58.2
The order in paragraph 58.1 above does not apply to claims in respect
of which a final settlement has been reached or
which have prescribed
or in which a final judgment has been granted, before the date of
this order.
58.3
Claims to which the order in paragraph 1 applies shall be governed by
the
Road Accident Fund (Transitional Provisions) Act 15 of 2012
,
provided that in respect of such claims the period of one year
contemplated in section 2 of the Act shall not commence running
until
the date of this order.
58.4
Upon confirmation of the invalidity of
section 19(b)(ii)
of the
Road
Accident Fund Act 56 of 1996
, as it read prior to 1 August 2008, by
the Constitutional Court, the Road Accident Fund is directed within
14 days to:
(a)
Pay an amount of R4 014 079.90 to the applicant within 14 days
hereof; and
(b)
Issue the applicant with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
within the same period of
time.
__________________
M.
H.
RAMPAI,
AJP
On
behalf of applicant:
Adv. A. M. Annandale SC
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of respondents:
Adv. Rudlender
Instructed by:
McIntyre & Van der
Post
The State Attorney
BLOEMFONTEIN
/ebeket
______________
M.
H. RAMPAI, J
On
behalf of plaintiff:
Adv
Instructed by:
BLOEMFONTEIN
On
behalf of defendant: Adv
Instructed by:
BLOEMFONTEIN
/ebeket