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[2013] ZAGPPHC 124
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Maphanga v Road Accident Fund and Another (76591/09) [2013] ZAGPPHC 124 (16 May 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
/ES (REPUBLIC OF SOUTH AFRICAN
CASE
NO: 76591/09
DATE:16/05/2013
IN
THE MATTER BETWEEN:
ZINTOMBI
MAGDALINE MAPHANGA
….............................................................
PLAINTIFF
AND
THE
ROAD ACCIDENT
FUND
.............................................................................
1ST
DEFENDANT
PUTCO
LIMITED
......................................................................................................
2nd
DEFENDANT
JUDGMENT
MAKGOBA,
J
[1]
This case concerns the meaning to be attached to the phrase "the
Road Accident Fund Act 1996 (Act no 56 of 1996) as it
stood prior to
1 August 2008" as such phrase appears in the definition of “the
old Act" in section 1 of the Road
Accident Fund (Transitional
Provisions) Act, 2012 (Act no 15 of 2012).
[2]
The parties have resolved to argue this matter on the basis of agreed
facts and a stated case.
[3]
The statement of agreed facts and stated case are the following:
'1.
The plaintiff is Zintombi Magdaline Maphanga, a 61 year old major
female born on 2 February 1952. The first defendant is the
ROAD
ACCIDENT FUND, a legal persona by virtue of the provisions of
section
2
of the
Road Accident Fund Act, No 56 of 1996
. The second defendant
is PUTCO LTD, a public company duly registered and incorporated
according to the laws of the Republic of
South Africa.
2.
The 'old Act' means the Road Accident Fund Act, 1996 (Act no 56
of1996), as it stood prior to 1 August 2008.
3.
On 24 January 2008 in the afternoon on the Cullinan Road within the
RSA, the plaintiff sustained bodily injuries in a single
vehicle
accident that occurred whilst she was being conveyed as a passenger
for reward (fee- paying passenger) in a motor vehicle
negligently
driven by P O Nkwana, an employee of the second defendant acting as
such within the course and scope of that driver's
employment and in
the execution of his duties and for whose negligence the second
defendant is vicariously liable, which bodily
injuries were caused
exclusively by or arose exclusively out of the negligent driving of
that motor vehicle by the driver thereof
4.
As a result of the aforegoing, the plaintiff at all relevant times
had the right to claim compensation from the first defendant
in terms
of section 17 of the old Act subject to the limitations imposed by
section 18(1) or (2) of that Act, which claim had neither
prescribed
nor been finally determined by settlement or judgment, upon the date
of the
Road Accident Fund (Transitional Provisions) Act, 2012
, Act No
15 of 2012 (hereinafter called the Transitional Act), taking effect
on 13 February 2013 by virtue of Proclamation No 3
of 2013 published
in Government Gazette No 361412, or at all; and the plaintiff is
consequently a third party' as defined in section
1 of the
Transitional Act.
5.
The plaintiff has expressly and unconditionally indicated to the
first defendant as prescribed by the Minister (of Transport)
and in
compliance with The Road Accident Fund (Transitional Provisions)
Regulations of 2013 (Regulation No R92) as published in
Government
Gazette 36142 by way of the submission to the first defendant of the
duly completed TP1 form on 13 March 2013, within
one year after the
Transitional Act taking effect, her election to have her claim remain
subject to the old Act
6.
In the premises, the claim of the plaintiff falls to be dealt with
under and in terms of the old Act
7.
In this action, the plaintiff alleging consequential damages in the
total sum of Rl, 056,777.00 has sued:
7.1
the first defendant for the maximum amount of its statutory liability
of R25,000.00 as contemplated by virtue of the limitation
imposed in
section 18(1) of the old Act and simultaneously the second defendant
at common law for the balance of her damages in
delict;
7.2
alternatively, the first defendant for all her damages.
8.
The sole issue for determination at this stage is whether, on the
proper interpretation of the provisions of the Transitional
Act and
more particularly of the definition in section 1 of the Transitional
Act, of the old Act as 'the Road Accident Fund Act,
1996 (Act No 56
of 1996), as it stood prior to 1 August 2008' the aforesaid claim of
the plaintiff under and in terms of the old
Act:
8.1
is subject to the limitations by section 18(1) of the old Act; or
8.2
is not subject to such limitations.
9.
If the plaintiffs claim is subject to the limitation imposed by
section 18(1) of the old Act her claim remains lies against both
defendants, the first defendant being liable for R25,000.00 of the
damages she suffered and the second defendant for the balance
thereof
If the plaintiffs claim is not subject to the limitation imposed
by
section 18(1) of the old Act the second defendant will be excused
from liability and the first defendant will be liable for all
the
damages suffered by the plaintiff.”
[4]
It is common cause that the plaintiffs claim is subject to the Road
Accident Fund (Transitional Provisions) Act 15 of 2012 ("the
Transition Act"). It is also common cause that the plaintiff has
duly elected in terms of the Transition Act to have her claim
"remain
subject to the old Act" - that is "the
Road Accident Fund
Act 56 of 1996
, as it stood prior to I August 2008".
[5]
In terms of section 1 of the Transition Act the ”old Act"
means the Road Accident Fund Act, 1996 (Act no 56 of 1996)
as it
stood prior to 1 August 2008. The "new Act" means the Road
Accident Fund Act, 1996 (Act no 56 of 1996) as it stood
from 1 August
2008 onwards. That is the Act as extensively amended by virtue of the
Road Accident Fund Amendment Act, 2005 (Act
no 19 of 2005).
[6]
The issue that presently requires to be determined is one of
statutory interpretation. There are two possible approaches adopted
by the respective parties in this matter:
6.1
The plaintiff contends that the Transition Act, coupled with her
election, means that her claim against the Road Accident Fund
is
unlimited.
6.2
The Road Accident Fund (first defendant) contends that the Transition
Act, coupled with the plaintiffs election, means that
her claim
against the Road Accident Fund is limited to R25 000,00, meaning she
can claim the balance of her claim against Putco.
[7]
Putco Limited, the second defendant, is not contesting this case. I
am advised that they abide the decision of the court.
[8]
A brief background to the relevant legislation herein will assist in
resolving the issue between the parties. I accordingly
set out the
legislative history giving rise to the present dispute.
[9]
When the
Road Accident Fund Act 56 of 1996
was enacted, it sharply
limited the ability of certain claimants to claim compensation
against the Road Accident Fund. In particular
passengers in single
vehicle accidents were limited by section 18 of the Act to a maximum
claim of R25 000,00. They were entitled
to claim the balance of their
claims from the driver/owner of the motor vehicle concerned. This
then was the position under the
"old RAF Act" prior to 1
August 2008.
[10]
On 1 August 2008 the
Road Accident Fund Amendment Act 19 of 2005
commenced operation. This put in place a range of far-reaching
amendments, including capping claims for loss of income, limiting
the
plaintiffs to whom general damages were available and so on. It
abolished the R25 000,00 cap on passengers' claims. This regime
is
referred to as the "new RAF Act". However, the new RAF Act
expressly did not apply to accidents occurring before 1
August 2008.
In respect of those accidents the old RAF Act continued to apply.
[11]
In view of this, three passengers whose accidents occurred prior to 1
August 2008 and whose claims were consequently capped
by the old RAF
Act, challenged the constitutionality of certain sub-sections of
section 18 of the old RAF Act On 17 February 2011
in Mvumvu and
others v Minister for Transport and another
2011 2 SA 473
(CC)
the
Constitutional Court upheld their constitutional challenge. It
granted an order declaring sections 18(l)(a)(i), 18(l)(b) and
18(2)
of the old RAF Act unconstitutional and invalid. It, however,
suspended the declaration of invalidity for eighteen months
"to
enable Parliament to cure the defect".
[12]
The period of eighteen months was later extended by the
Constitutional Court for a further six months. Within this six months
period the Transition Act was enacted by Parliament. It commenced
operation on 13 February 2013.
[13]
The Transition Act applies to claimants whose claims have not yet
been finalized and whose claims were previously inexorably
capped at
R25 000,00 by the old RAF Act. Section 2 of the Transition Act offers
them an election. They must either:
5.1
choose to be subject to the regime under the Transition Act, which is
far more generous than the old R25 000,00 cap but which
means they
give up their common law claim against the driver or owner of the
motor vehicle; or
5.2
choose to "remain subject to the old Act”, in which case
their common law claim against the driver or owner of the
vehicle is
preserved.
[14]
The present plaintiff elected to adopt the latter course. The
plaintiff has not challenged the constitutional validity of the
Transition Act. I shall therefore, for purposes of this judgment,
accept that the Act is constitutionally valid and embark on the
interpretation of the relevant clause in issue.
[15]
The plaintiff contends that upon a proper interpretation of the
Transition Act, the limitation in section 18(l)(a)(i) of the
old RAF
Act does not apply to the plaintiffs claim. Mr Geach SC, counsel for
the plaintiff, argued that the purpose of this legislation
remains,
as it always has been, to afford the greatest possible protection to
victims of road accidents. That in applying the limitation
contemplated in section 18(1 )(a)(i) of Act 56 of 1996 undeniably
runs counter to such purpose. Counsel referred to the decision
in
True Motives 84 (Pty) Ltd v Mahdi and another 2009 4 SA (SCA) at 75
par [70] where it was said:
"If
the literal meaning of the subsection defeats its objective then the
subsection ought to be construed differently so as
to ascribe to it a
meaning that promotes its purpose
[16]
Mr Geach SC submitted further that it is inconceivable that the
legislature would have intended to subject victims of road
accidents
to provisions and limitations that have already been found by the
Constitutional Court to be unconstitutional and wholly
inconsistent
with the Constitution of the Republic of South Africa. It is quite
absurd, counsel argued, to suggest that the legislature
would
iniquitously expect its citizens to be treated unconstitutionally.
[17]
Counsel submitted further that it is possible to avoid the aforesaid
absurdity and iniquity by simply interpreting the phrase
in section 1
of the Transition Act to mean Act 56 of 1996 minus its
unconstitutional limitations. This means that the expression
in the
1996 Act "as it stood prior to 1 August 2008" must be read
with the exclusion of the limitation contained in section
18(1
)(a)(i). This, according to counsel, does no injustice to the wording
of the statute itself yet serves to save it from offending
against
the Constitution.
[18]
Mr S Budlender, for the first defendant, submitted that the
plaintiffs interpretation is patently untenable for at least two
reasons:
18.1
first, it is inconsistent with the plain wording of the Transition
Act, read with the old RAF Act;
18.2
second, it is inconsistent with the purpose and context of the
Transition Act.
[19]
I am persuaded that the first defendant’s contention is
correct. Section 2(1) of the Transition Act is clear. A plaintiff
may
elect "to have his or her claim remain subject to the old Act".
The term "old Act" is defined in the Transition
Act as
meaning "the Road Accident Fund Act, 1996 (Act 56 of1996) as it
stood prior to August 2008". There is no doubt
that section 18
of the old RAF Act meant that a claimant who was subject to its terms
had his or her claim against the Road Accident
Fund capped at R25
000,00, with the balance claimable against the driver/owner of the
motor vehicle.
[20]
Counsel for the plaintiff somehow contends that the reference to "the
Road Accident Fund Act, 1996 (Act 56 of 1996), as
it stood prior to 1
August 2008" in the Transition Act is not in fact a reference to
the whole of the old RAF Act. He seeks
to suggest that it is a
reference to the whole of the old RAF Act, excluding section 18
thereof. This is untenable. The plain wording
of the Transition Act
makes it clear that it is the whole of the old RAF Act that applies.
If Parliament had wanted to exclude
section 18, it would have done
so. It did not.
[21]
The golden rule of interpretation is to ascertain the intention of
the legislature as expressed in the terms used in the statute
concerned. In MN v MM and another
2012 4 SA 527
(SCA) at para [14] it
was said that-
"It
is trite that the primary rule in the construction of a statutory
provision is to ascertain the intention of the legislature
by giving
the words of the provision under consideration the ordinary
grammatical meaning which their context dictates, unless
to do so
would lead to an absurdity the legislature could not have
contemplated. The language used is but one of the ways of determining
the intention of the legislature; so are the aim and purpose of that
particular provision. Whilst words must be given their ordinary
meaning, a contextual and purposive reading of the statute is also
important.”
[22]
In my view, in the present case there is no conceivable ambiguity
about the definition "the Road Accident Fund Act, 1996
(Act 56
of 1996) as it stood prior to 1 August 2008". There is no
absurdity which can be read into the statute. Hence a purposive
reading of the statute is unnecessary.
[23]
In his argument counsel for the plaintiff has called in aid numerous
decisions of the constitutional court regarding the need
to interpret
statutes in a manner that promotes the Constitution. However, in each
and every such case the court has made clear
that this principle has
a limit - it cannot be used to Munduly strain" the language of
the statute concerned. In Investigating
Directorate: Serious Economic
Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor
Distributors (Pty) Ltd v Smit
NO
2001 1 SA 545
(CC) at paras [23] -
[24] the court made this clear:
"
Judicial officers must prefer interpretations of legislation that
fall within constitutional bounds over those that do not,
provided
that such an interpretation can be reasonably ascribed to the
section. Limits must, however, be placed on the application
of this
principle. ... Such an interpretation should not, however, be unduly
strained,\"
See also: National Credit Regulator v
Opperman
2013 2 SA 1
(CC) at para [31].
[24]
On the plain wording of the Transitional Act and the old RAF Act, the
plaintiffs contention must fail.
[25]
The plaintiffs interpretation is inconsistent with the purpose and
context of the Transitional Act. By contrast, the first
defendant’s
interpretation is consistent with the purpose of the statute. On the
first defendant's interpretation the Transition
Act allows all
previously capped claimants an adequate and far more generous
compensation regime in the following instances:
17.1
Whereas such claimant would previously have been able to claim only
R25 000,00 in total from the RAF, under the transitional
regime the
plaintiff can now claim damages for loss of income of up to R160
000,00 per year, unlimited general damages if there
is a serious
injury and medical costs.
25.2
In the alternative, such a claimant can elect to remain bound by the
old RAF Act and can then claim R25 000,00 from the RAF
and full
compensation from the driver/owner of the motor vehicle.
25.3
The regime is not only financially sustainable for the RAF, but also
allows claimants (like the present plaintiff) to elect
to claim their
common law rights against the driver/owner of the vehicle.
[26]
In their stated case the parties have agreed that it is appropriate
that each party pays its own costs whatever the outcome
of these
proceedings. Consequently there shall be no order as to costs in this
matter.
[27]
In all the circumstances the stated case is decided in favour of the
first defendant and the plaintiffs contentions must fail.
Having
elected to be bound by the old RAF Act, the position is now that the
plaintiff can:
27.1
claim a maximum of R25 000,00 from the Road Accident Fund; and
27.2
claim the remainder of her damages from Putco.
E
M MKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
76591-2009
HEARD
ON: 6 MAY 2013
FOR
THE PLAINTIFF: B P GEACH SC AND L J VISSER
INSTRUCTED
BY: SALOME LE ROUX ATTORNEYS
FOR
THE 1st DEFENDANT: S BUDLENDER AND R LATIB
INSTRUCTED
BY: SEKATI MONYANE & PARTNERS