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[2008] ZAWCHC 51
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Engelbrecht v Road Accident Fund and Another (3701/03) [2008] ZAWCHC 51 (2 August 2008)
IN THE HIGH COURT OF
SOUTH AFRICA
(
CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE No.:
3701/03
In the matter between:
R
ENIER
A
LBERTUS
H
ERMANUS
ENGELBRECHT
Plaintiff
and
THE ROAD ACCIDENT FUND
First
Defendant
MINISTER OF TRANSPORT
Second Defendant
JUDGM
ENT DELIVERED:
2 AUGUST
20
0
6
Allie, J
:
I
NTRODUCTION:
[1]
Plaintiff was injured in a motor vehicle accident which occurred on 22 February 2002 on the road between Clanwilliam and Citrusdal.
The First Defendant will hereafter be referred to as “The Defendant”.
[2]
Plaintiff testified that he was the driver of a motor vehicle which collided with a truck which
had passed him by, while driving in the opposite direction. The truck did not stop but continued and Plaintiff was unable to identify
either the truck or its driver. Plaintiff’s claim was accordingly governed by Section 17(1)(b) of the Road Accident Fund Act
No. 56 of 1996 (“the Act”) and the Regulations made in terms of Section 26 of the Act.
[3]
Defendant amended its plea by introducing a special plea raising the defence
in limine
that the fund was not liable to compensate Plaintiff because he failed to comply with Regulation 2(1)(c) of the Regulations in terms
of which the Road Accident Fund (“the Fund”) was not liable to compensate a third party unless the third party submitted,
if reasonably possible within 14 days after being in a position to do so, an affidavit to the police in which the particulars of
the occurrence concerned were fully set out.
[4]
On behalf of Plaintiff it was submitted that the special plea should fail for two reasons namely:-
1)
Plaintiff’s claim ought to be saved
because of the provisions of
Section 24(5) of the Act in terms of which the Defendant ought to
have timeously objected to Plaintiff’s non-compliance with
Regulation 2(1)(c); and
2)
Plaintiff submitted that Regulation 2(1)(c)
violates the Constitution.
[5]
On the first day of
the
trial
,
Plaintiff testified
about the accident and when he first had an opportunity to make an affidavit at the Police Station
. It became clear that oral evidence was required on behalf of the Road Accident Fund and the Minister
of Transport
on the Constitutional point. The case was postponed to enable the Road Accident Fund and the Minister
of Transport
to
lead such evidence. On the postponement date
,
the Plaintiff agreed to testify on the Regulation 2(1)(c) issue.
[6]
In his replication
Plaintiff state
d
that he attested to the affidavit on
10 April 2002
at Clanwilliam and handed it in to the South African Police Services there. A letter written by Plaintiff’s Attorney dated
1 March 2002
and sent to the Station Commander at Clanwilliam was handed in. The letter refers to the particulars of the motor collision and describes
the unidentified vehicle as a “
wit vragmotor
”.
In the l
etter
, plaintiff’s attorney
states that their client, namely the Plaintiff, would contact the South African Police Services in the following week with the view
to lodging a formal complaint. Plaintiff’s testimony was that after the collision on
22 February 2002
, he remained in hospital for approximately 2 to 3 days and thereafter he went to his parents’ home in Durbanville where he
convalesced for about two and a half weeks. He said that while he was convalescing, he did not have access to a motor vehicle. After
one week of convalescing, he went to consult his attorney.
[7]
Professor Meyer, the Ophthalmologist
who attended to Plaintiff stated
, in his report, that he considered that Plaintiff could have returned to work on
5 March 2002
. Plaintiff testified that because of his psychological state after the collision, he was not at first aware that the filing of an
affidavit with the Police was an urgent matter and he was too emotionally disturbed to care. Plaintiff later testified that his earlier
testimony in which he said that the affidavit was attested to on 10 April at Clanwilliam Police Station was incorrect and that the
affidavit was in fact deposed to on
4 May 2002
.
[8]
On behalf of the Defendant it was argued that the Plaintiff was in a position to submit the relevant
affidavit while he was in hospital and it was reasonably possible for him to have done so at the latest by
1 March 2002
. At the stage of argument,
Plaintiff’s counsel,
Mr Heunis (SC) abandoned the argument that there had been compliance with Regulation 2(1)(c).
Instead he relied on two arguments,
namely, the Section 24(5) argument and the argument that Regulation 2(1)(c) is unconstitutional.
T
HE SECTION 24(5) ARGUMENT:
[9]
Section 24(5) of the Act provides as follows:-
“If the Fund or the agent does not, within 60 days from the date on which a claim was sen
t
by registered post or delivered by hand to the fund, such agent as contemplated in subsection (1), object to the validity thereof,
the claim shall be deemed to be valid in law in all respects.”
[10]
On behalf of Plaintiff it was argued that even if Plaintiff did not file his Section 2(1(c) affidavit
timeously, his claim is saved by the fact that the Defendant failed to object thereto within 60 days as required in terms of Section
24(5) of the Act. On behalf of Defendant, it was argued that Section 24(5) only applies to formal defects and it was not intended
to affect substantial omissions not related to the claim form.
[11]
The Supreme Court of Appeal in the case of
Road Accident Fund v Thugwana
2004 (3) SA 169
(SCA)
declined to consider whether Section 24(5) was an answer to the Plaintiff’s failure to file an affidavit timeously. The Court
did
so because counsel in that case, w
as
unable to make considered submissions on the law and facts. The Supreme Court of Appeal afforded the Plaintiff in that case, the
opportunity of filing a replication dealing with Section 24(5). The Plaintiff filed the replication and the issue of whether Section
24(5) entitled Plaintiff to claim by virtue of the Fund’s failure to object within the requisite 60 days, was determined by
the Transvaal Provincial Division in
Thugwana v The Road Accident Fund
2005 (2) SA 217
(T)
. Els J found that Section 24(5) only referred to compliance with the content of the claim and accompanying documents. He held that
it would lead to absurdity if Section 24(5) was interpreted to apply to all procedural sections of the Act and the Regulations. On
appeal, in the
Thugwana Case
, Mlambo JA, writing for a unanimous Court, held that Regulation 2(1)(c) prescribes a substantive requirement to found liability and
fail
ure to comply with it is fatal, while
Section 24 has the objective of ensuring, before the commencement of litigation, that the Fund is furnished with sufficient particulars
to enable it to make a decision about the claim.
[1
2
]
In the circumstances, this Court is bound by the decision of
the Supreme Court of Appeal
and the Plaintiff’s argument that Section 24(5) saves his claim must fail.
THE ARGUMENT THAT REGULATION 2(1)(c) IS UNCONSTITUTIONAL:
[13]
On behalf of Plaintiff it was submitted that the Regulation offends against Section 34 of the Constitution
which provides as follows:-
“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing
before court or, where appropriate, another independent and impartial tribunal or forum.”
[14]
Mr Heunis
(S.C)
on behalf of Plaintiff argued that Section 34 did more than merely prohibit ouster clauses, it also prohibited more subtle restrictions
on access to courts. He argued that the objective sought to be attained by Regulation 2(1)(c), namely, to prevent fraudulent claims
could in fact be achieved by less restricted means. He argued further that the onus rests on the party asserting the unconstitutionality
of the statute to prove that there has been a violation of Constitutional rights and then the onus shifts to the party seeking to
uphold the Constitutionality of the statute to prove that such violation is justified under the limitation clause of the Constitution.
[15]
Mr Heunis went on to consider the requirements of Section 36 namely, that the limitation of rights should
be reasonable and justifiable. He considered that Section 36 required a two stage inquiry. First by the evaluation of the reasons
for the law that limits the right. Second, the determination of whether there is a rational relationship between those reasons and
the limitation. Third, the determination of whether there is an acceptable degree of proportionality between the benefits to be obtained
by the limitation and the harm that the limitation of rights entailed.
[16]
He argued that the Supreme Court of Appeal in the
Thugwana-case
found that Regulation 2(1)(c) demanded compliance in all cases governed by it no matter how harsh that may turn out to be. He submitted
that the severity of the consequences of Regulation 2(1)(c) meant that many of the
claimants
that
were hit by it would not be afforded an adequate and fair opportunity to seek judicial redress for wrongs done to them.
[17]
He argued that the limitation imposed by Regulation 2(1)(c) is too restrictive for the purpose it was
designed to achieve when due regard is had to the nature of the right which it infringes. He
submitted
that the requisite of deposing to an affidavit as a pre-condition to being able to institute legal proceedings is an obstacle by
itself. He submitted further that the time period of 14 days was exceedingly short. He believed that failure to comply absolutely
negated the claim and that no condonation for any failure to comply was provided for.
[18]
He pointed out that what made the Regulation even more unjust, was that the majority of the claimants
were probably unaware of the requirement and would only find out after having received legal advice.
[19]
In the case of
Thugwana
, the argument was advanced that the purpose of the Regulation was to combat fraudulent claims. Mr Heunis pointed out that in the
present case, the testimony of Mr C. Muller
, a training officer of claim handlers employed by Defendant,
was that he had found a document from the Minister of Transport at the time when he introduced Regulation 3(1)(a)(iii), the predecessor
of the present Regulation 2(1)(c). In that document, it appeared that the Regulation was introduced as a counter balance for the
right to sue the Road Accident Fund directly, as opposed to proceeding agai
nst the individual insurers. Mr Heunis
argued that the purpose of the regulation was clearly therefore not to combat fraud. Mr Muller’s point of departure was that
he believed in the case of unidentified vehicles, the claimant would ordinarily not have a right to claim and that the Regulation
sought to give an injured person the right to claim while also restricting it.
[20]
The testimony advanced on behalf of Plaintiff was that the South African Police Services did not investigate
civil cases. The fact that a statement on oath was presented to the South African Police did not necessarily trigger a criminal investigation.
The South African Police Services would merely visit the scene of the accident to draw up an accident report.
[21]
Mr Heunis pointed out that a
victim of a hit-and-ran accident does have a claim against the wrongdoer
even though
the victim may have difficulty identifying that wrongdoer. He argued that the common law right for the victim to claim against the
wrongdoer was therefore removed by the Legislature who then granted the victim a right to claim against the Road Accident Fund only.
[22]
He pointed out that a hit-and-run accident is not one by definition where there are no eyewitnesses.
He argued that it is one where the driver or owner of the vehicle could not be identified.
[23]
In the present case, the South African Police Services opened a docket after receiving the attorney’s
letter requesting an investigation but the investigation was not proceeded with after Mr Engelbrecht, the Plaintiff, said that he
did not personally require it and the docket was then closed.
[24]
Mr Van Wyk
, an attorney,
who testified on behalf of Plaintiff said that despite the South African Police Services having instructions to do so, he found in
his experience of investigating hit-and-run cases, that dockets were rarely opened. According to the evidence of the Director of
the South African Police Services, Ms Macala, there is a standing order dated
21 August 1995
dealing with the manner in which the South African Police Services should act when a road traffic collision is brought to their notice.
[25]
The evidence of
the attorneys,
Messr
s Kruger, Van Wyk and Kelder were,
that in their experience
,
the police more frequently than not failed to act according to these standing orders. It became clear that the South African Police
Service
s
d
id
not adopt the practice of forwarding the affidavit to the Road Accident Fund and it is not obliged to do so. The South African Police
Services are under no obligation to preserve the affidavit and only the police station in whose district the accident occurred would
open a docket and would perhaps wish to keep the affidavit on file.
[26]
Messrs Kruger and Van
Wyk ,
on behalf of Plaintiff
,
testified that the Regulation 2(1)(c) was often
not
accepted
by the South African Police Service when tendered for submission. They also testified that when such affidavits were submitted, the
South African Police Services could not retrieve them when requested to do so.
[27]
However, Ms
Macala testified that when she visited the Khayelitsha and Nyanga Police Stations, she was able to retrieve affidavits that had been
sent there by post. She found them all in the correspondence file and not as part of the dockets. She also confirmed
that
from the documents placed before her, she could conclude that often dockets were not opened. Her evidence showed that
the South African Police Services often make serious mistakes
concerning whether accidents are reported or not. She admitted that she did not know about the provisions of Regulation 2(1)(c) prior
to meeting wit
h Defendant’s counsel. Ms
Macala testified that in her search she did not find any letter from the Road Accident Fund requesting a copy of such affidavit.
[28]
The evidence advanced on behalf of Defendant is that the primary purpose of Regulation 2(1)(c) was to
afford the police an opportunity to establish whether an accident occurred, the identity of the driver or the owner and whether the
driver should be prosecuted. The evidence was that it is necessary to file an affidavit in terms of Regulation 2(1)(c) within the
requisite period so that the Defendant can eliminate the possibility of fraud in “hit-and-run” cases.
[29]
On behalf of Plaintiff, evidence was adduced that the police generally did not know of the existence
of Regulation 2(1)(c). They often refused to accept the affidavit presented to them in terms of the Regulation. They
sometimes sent it back to the a
ttorney. They often d
id
not open a docket and investigate when they receive
d
the affidavit. Where they do open a docket, the affidavit is not placed in it.
Ms
Macala testified that she was able to find Regulation 2(1)(c) affidavits in the correspondence file at the Police Stations that she
visited. Her ability to trace the affidavits ha
s
to be viewed against the obvious co-operation that the police would give to its Director.
[30]
Messrs Van Wyk and Kruger confirmed that fraud sometimes occurred in alleged “hit-and-run”
claims. They however, believed that the affidavit did not prevent fraud. Mr Van Wyk said that “
touts
” who intended to submit fraudulent claims were aware of the provisions of Regulation 2(1)(c) and often complied with it even
when the claim was fraudulent.
[31]
Mr Kruger said that because of the police’s failure to investigate at an early stage and because
the Road Accident Fund did not request the affidavit from the police at an early stage, the stated purpose of the Regulation was
not achieved.
THE APPLICABLE LAW:
[32]
In the case of
Road Accident Fund v Makwetlane
2005 (4) SA 51
(SCA)
Marais, JA in discussing
whether the Regulations defeat
the object of the Act, i.e. to provide compensation to a vi
ctim of a hit-and-run” accident,
held that while the consequence of non-compliance can non-suit a genuine claimant, so too can other provisions of the Act such as
the failure to file a claim timeously. He considered that neither of those provisions frustrated the objects of the Act.
[33
]
On behalf of Plaintiff, i
t was argued that Regulation 2(1)(c) can
be said to effectively deny a litigant his/her rights of access to justice as provided for in Section 34 of the Constitution. Section
34 reads as follows:-
“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing
before a court, or where appropriate, another independent and impartial tribunal or forum.”
[34]
De Waal, Currie and Erasmus in their work entitled The Bill of Rights Handbook (4
th
edition, 2001) at 558 – 559, argue that Section 34 is designed to prohibit more subtle limitations on access to courts.
[35]
If Regulation 2(1)(c) affidavits were accepted by the South African Police Services
within the requisite 14 days and i
f the allegation of a motor vehicle accident in those affidavits were investigated by the South African Police, the Regulation may
well have had the effect of exposing contrived claims. It would see
m
that the Road Accident Fund has not sought to implement the provisions of Regulation 2(1)(c) for the purpose of establishing whether
a “hit-and-run” accident did in fact occur. If they were in
tent on arriving at the true position, they would request that the police investigate and they would request the affidavits from the
police as a matter of routine.
[3
6
]
The Regulation
per s
does not non-
suit litigants. It is the failure to investigate the allegation of hit-and-run cases at an earlier stage that results in a denial
of access to the courts.
[3
7
]
The Road Accident Fund was content
with
deriv
ing
the maximum benefit from the ignorance and inaction of the South African Police Services. It is this conduct which runs contrary
to the object and purpose of the Act as read with Section 34 of the Constitution. The
Road Accident Fund
Act has
a social aim of facilitating claims for personal injury even where the wrongdoer cannot be identified.
[
3
8
]
I am not persuaded that the Regulation falls foul of section 34 of the Constitution. At best for the Plaintiff,
it can be said that the failure of the South African Police Services to investigate accidents
involving unidentified vehicles and the Fund’s failure to take reasonable measures to facilitate investigation of these accidents,
could cause an
infringement of Section 34.
[
39
]
Mr Werner, on behalf of the Defendant, was unapologetic about the role of Regulation 2(6) interrogations.
He saw it as an opportunity to exploit any differences, no matter how minute, in a claimant’s version so that his staff could
make adverse credibility findings. He was prepared to make serious negative findings concerning the credibility of a claimant, merely
on a person’s demeanor or failure to co-operate.
[
40
]
Overzealous employees of the Fund seemed intent on using the existence of the Regulation to non-suit the
claimants.
[4
1
]
The Defendant’s attitude toward claimants during interrogations coupled with its approach in not using
Regulation 2(1)(c)
as an investigative tool hark
s back to a pre-Constitutional era where intimidation was rife.
[4
2
]
The Defendants have advanced no justifiable reason for its conduct in seeking to non-suit claimants without thorough investigation
in “hit-and-run” cases.
[43]
The Supreme Court of Appeal has held that the Regulation is necessary to combat fraud. [
See
Road
Accident Fund v Thugwana
2005 (4) SA 51
(SCA)
and
Mbatha v Multilateral Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997 (3) SA 713
(SCA)
].
[4
4
]
On behalf of Plaintiff it was argued that the same objective, namely,
combatance of fraud, could be achieved
by less restrictive means because the reason for the regulation is not rationally connected to the limitation that it imposes.
[4
5
]
There is however, a rational relationship between the object and purpose of the regulation and the limitation
that it imposes. Once motor vehicle accident
s
involving unidentified vehicle
s
are routinely
reported to the police, on the assumption that a statement on oath is taken from
each
complainant and the incident
s
are
investigated so that collateral evidence is gathered to either prove or disprove the existence of
a
collision, it would be a perfectly justifiable step
for the Road Accident Fund to
refuse a claim in
cases where
no Regulation 2(1)(c) affidavit is filed.
[4
6
]
In
Mbatha’s case
, the court found that stricter requirements were necessary to avoid the possibilit
y of fraud. The court also found
that the later the claim is lodged
,
the worse are the chances of disproving the claim.
[4
7
]
Although the evidence in the present case is that
“
touts
”
will ad
a
pt their
modus operandi
so that they do not fall foul of Regulation 2(1)(c) when lodging fraudulent claims, the court in
Makwetlane’s case
has held that whether the Regulation is effective or not, is not relevant because as long as it has the potential to combat fraud
and that potential is not
de
minimus
, it has a rational purpose.
[
4
8
]
The parties agree that fraudulent claims are lodged in “hit-and-run” cases, although they disagree
on how widespread they are.
[
49
]
While the Regulation 2(1)(c) affidavits have found their way into
correspondence file
s
at police stations, no evidence
w
as led to show that their existence in a correspondence file, ever
result in
an investigation. In this way, we see compliance with the Regulation in form but not in substance.
[5
0
]
The question of whether the Defendant carries the duty to ensure compliance with Regulation in substance,
has not been canvassed.
It has also not
been
argued that
the Defendant can be
e
stopped from relying on the benefits
conferred on it by
Regulation 2(1)(c)
because
it has taken no steps to ensure that where Regulation 2(1)(c) affidavits are made, the accident is investigated at an early stage.
[5
1
]
Regulations cannot be struck down when their intended purpose is not achieved because of the conduct of
the functionaries tasked with ensuring the attainment of its objectives.
[5
2
]
It is the conduct of the South African Police Services and that of the Defendant in not utilizing the opportunity
created by Regulation 2(1)(c) to investigate a claim at an early stage, that may require further scrutiny in due course.
[5
3
]
It follows that I am not persuaded that Regulation 2(1)(c) is unconstitutional and unjustifiable, nor that
it constitutes a limitation on the rights of access to
the
courts. It is accordingly not necessary to decide whether its objectives can be achieved by less restrictive means.
[5
4
]
The Plaintiff,
in casu
, has conceded that he has not complied with Regulation 2(1)(c).
In the circumstances, the following order is made:-
(i)
The Plaintiff’s claim is dismissed with costs.
(ii)
Plaintiff shall pay the costs including the costs of two counsel.
----------------------
ALLIE J