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[1996] ZACC 19
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Tsotetsi v Mutual and Federal Insurance Company Ltd (CCT16/95) [1996] ZACC 19; 1996 (11) BCLR 1439; 1997 (1) SA 585 (12 September 1996)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
16/95
ELIAS TSOTETSI
versus
MUTUAL AND FEDERAL
INSURANCE COMPANY LTD
Heard on: 29 August 1995, 16 May 1996
Decided on: 12 September 1996
JUDGMENT
O’REGAN J:
[1] On 25 February 1991, the applicant, Mr Elias Tsotetsi was allegedly rendered
a quadriplegic as a result of injuries sustained
in a motor vehicle accident.
According to the applicant, the accident occurred solely as a result of the
negligence of the driver
of the vehicle in which he was a passenger which was
being driven in the course of business of the owner of the vehicle. On 5 April
1994, the applicant launched an action for damages of R1 143 600 in the
Transvaal Provincial Division of the Supreme Court against
the Mutual and
Federal Insurance Company Ltd, the respondent, which is an appointed agent in
terms of the Multilateral Motor Vehicle
Accidents Fund Act, 93 of 1989 (the
Act).
[2] In its plea, the respondent relied upon article 46(a)(ii) of the schedule to
the Act (“the schedule”) which stipulates
that the entitlement to
damages of a passenger in a vehicle being conveyed in the course of business of
the owner of the vehicle
is limited to a maximum payment of R25 000. In
addition, the respondent relied upon article 47(a) of the schedule which
provides
that where a third party injured in a motor vehicle accident is a
worker entitled to compensation at the time in terms of the Workmen’s
Compensation Act, 30 of 1941 (subsequently replaced by the Compensation for
Occupational Injuries and Diseases Act, 130 of 1993),
the worker’s
entitlement to damages is limited to the difference between R25 000 and the
amount paid by the Workmen’s
Compensation
Commissioner.
[3] In a replication, the applicant challenged the constitutional validity of
articles 46(a)(ii) and 47(a) of the schedule, and sought
that the question of
their validity be referred to this court in terms of section 102(1) of the
Constitution of the Republic of South
Africa, Act 200 of 1993 (the
Constitution). On the 13 February 1995, Curlewis DJP referred the question of
the validity of the challenged
provisions to this court.
[4] The first question that arises for decision is whether the referral was
competent. Section 102(1) stipulates three conditions
precedent for a valid
referral: the issue referred must be one which falls within the exclusive
jurisdiction of this court, the issue
must be one which may be decisive for the
case and the referring judge must consider the referral to be in the interests
of justice.
Implicit within the requirement that the matter be in the interests
of justice is a consideration of whether there are reasonable
prospects of
success upon referral (
S v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995
(7) BCLR 793
(CC) at paragraph 59). In this case, the challenged provisions
clearly fall within this court’s exclusive
jurisdiction.
[5] It does not seem however that it can be said that the issue referred may be
decisive of the case before the referring court.
In
Luitingh v Minister of
Defence
[1996] ZACC 5
;
1996 (2) SA 909
(CC);
1996 (4) BCLR 581
(CC) at para 9 Didcott J,
speaking on behalf of a unanimous court, held that this requirement will be met
once the ruling sought
from the Constitutional Court “may have a crucial
bearing on the eventual outcome of the case as a whole, or on any significant
aspect of the way in which its remaining parts ought to be handled” (see
also
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (6) BCLR 752
(CC) at paragraph 10).
[6] In this case, the accident occurred and summons was issued before the
Constitution came into force. In
Du Plessis and Others v De Klerk and
Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at paragraph 19, this
court held that the Constitution cannot ordinarily be construed as interfering
with rights that vested
before it came into force. In that case, the court was
concerned with a suit for defamation in respect of a series of newspaper
articles published during 1993 and the defendants sought to raise a defence
based on section 15 of the Constitution. Kentridge AJ
held that “the
commission of the delict and the liability to pay damages cannot be separated.
The right to damages accrues
at the moment the defamation is published”
(at paragraph 17). In the case currently before us, the accident in which the
applicant
was injured occurred before the Constitution came into force, and the
liability of the respondent to pay damages was fixed at the
time of the
accident. The applicant seeks to argue that the limitation upon the amount of
damages the respondent is required to
pay imposed by the schedule is
unconstitutional. The effect of the decision in
Du Plessis v De Klerk
is
that the respondent’s obligation to pay damages, fixed as it was at the
time of the accident, could not subsequently have
been expanded by the
Constitution which came into effect only after the accident happened.
Accordingly, the applicant is not entitled
to rely on the provisions of the
Constitution to challenge the validity of articles 46(a)(ii) and 47(a) of the
schedule. (See also
Key v Attorney-General, Cape of Good Hope Provincial
Division and Another
[1996] ZACC 25
;
1996 (6) BCLR 788
(CC) at paragraph
6.)
[7] In his judgment in
Du Plessis v De Klerk
, Kentridge AJ left open the
question of whether there may be cases in which the enforcement of previously
acquired rights would be
so unjust that it could not be countenanced (at
paragraph 20 of his judgment; see also the judgments of Mahomed DP at paragraphs
69 - 70; and Kriegler J at paragraph 117). Mr Trengove SC, for the applicant,
argued that not only may there be cases where the
enforcement of rights vested
prior to the 27 April 1994 would not be countenanced by this court, but that
this was such a case.
He argued that several factors rendered this case
different from
Du Plessis v De Klerk.
First, that it is not a matter
between private litigants, but a matter between a private plaintiff and a
defendant acting as an agent
of a state institution, the Multilateral Motor
Vehicle Accidents Fund. Secondly, it is a case, he argued, concerned with
statutory
provisions which give rise to a gross violation of equality. Finally,
he argued, justice could be achieved by making any order applicable
only to
outstanding claims.
[8] In my view, this line of argument cannot succeed. It is unnecessary in this
case to decide the question to which I have referred
in paragraph 7 which was
expressly left open in
Du Plessis v De Klerk
. Even if it is accepted
that there may be exceptional circumstances where the general rule of
non-retroactivity may not apply, it
cannot be said that this is such a case.
Such a case could only arise first, if it was clear that the challenged
provision or conduct
was a gross violation of the provisions of the Bill of
Rights, and secondly, if there were special and peculiar reasons which would
suggest that an order with retroactive effect should be made in a particular
case. No such circumstances exist in this case. Even
if the applicant were to
persuade this court that the impugned provisions of the schedule do constitute a
breach of the equality
clause, it cannot be said that those provisions
constitute such a gross breach of that clause that a special exception to the
general
rule concerning the retrospective application of the Constitution should
be made.
[9] Nor are there special and peculiar reasons which would require that an order
having retroactive effect be made in this case.
Indeed the converse may be
true. The statute challenged by the applicant contains one of the major social
benefit programmes established
by the state. Were the court to declare the
provisions unconstitutional and sever them from the schedule with retrospective
effect,
the financial implications would be considerable. From the expert
reports provided to us, the additional costs imposed upon the
government would,
in the case of a retrospective order, impose an additional annual cost on the
Fund of R200 million, as well as
an additional non-recurring liability of R440
million. In 1993/4, the Fund had expenses of R855 million and in 1994/5, the
Fund’s
expenses just exceeded R1 billion. In both years, the Fund’s
income was in the region of R1 billion. The amount that would
have to be paid
by the Fund if the court were to make a retrospective order, therefore, would
have a grave impact on the financial
status of the Fund. The court would not
lightly make an order the effect of which would be to grossly distort the
financial affairs
of a welfare programme.
[10] It may well be, as the respondent argued, that the interests of justice and
good government would best be met in such a case
by an order in terms of the
proviso to section 98(5) of the Constitution which would suspend the order of
invalidity for a period
of time in order to give the Legislature an opportunity
to attend to the matter. It is true that the applicant was seriously injured
in
a motor vehicle accident and that the provisions of the schedule deprive him of
full compensation for those injuries (although
it appears that the applicant has
received a significant payment from the Workmen’s Compensation
Commissioner). But the effect
of declaring the impugned provisions invalid
would have such an inordinate effect on the financial structure of the Fund that
it
may be that those interests of justice would be outweighed. That may well
have been the case even if the accident had occurred
after the Constitution came
into operation. In the circumstances, I am not persuaded that this is a case in
which public policy
would require, not merely that a retrospective order be
made, but an order which would result in the Constitution operating
retroactively.
In the circumstances, it must be held that the referral in terms
of section 102(1) by the Transvaal Provincial Division was not
valid on the
grounds that the issue referred to this court cannot be decisive of the case
before that court.
[11] Mr Trengove argued that this was an appropriate case for the court to grant
direct access to the applicant. Mr Gauntlett SC,
for the respondent, did not
support that application. Section 100(2) of the Constitution provides
that:
“The rules of the Constitutional Court may make provision for direct
access to the Court where it is in the interest of justice
to do so in respect
of any matter over which it has
jurisdiction.”
Rule 17(1) provides that:
“The Court shall allow direct access in terms of section 100(2) of the
Constitution in exceptional circumstances only, which
will ordinarily exist only
where the matter is of such urgency, or otherwise of such public importance,
that the delay necessitated
by the use of the ordinary procedures would
prejudice the public interest or prejudice the ends of justice and good
government.”
In several cases, this court has confirmed that it has a discretion to allow
direct access and that it will not allow direct access
to it in the absence of
exceptional circumstances. (See
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at paragraph 11;
Executive Council of the Western Cape
Legislature and Others v President of the Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC) at paragraphs 15 - 17;
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at paragraph 10;
S v
Mbatha; S v Prinsloo
[1996] ZACC 1
;
1996 (2) SA 464
(CC);
1996 (3) BCLR 293
(CC) at
paragraph 29;
Luitingh v Minister of Defence
at paragraph 15;
Besserglik v Minister of Trade, Industry and Tourism and Others
[1996] ZACC 8
;
1996 (6)
BCLR 745
(CC) at paragraph 6;
Brink v Kitshoff NO
at paragraph 18.)
[12] The court has been willing to exercise its discretion to permit direct
access in several cases: where it was satisfied that
there was a pressing need
for a particular issue to be determined in order to avoid substantial
dislocation in the criminal justice
process (
S v Zuma
at paragraph 11);
or to prevent significant delays and disruption in the procedures relating to
the liquidation of companies (
Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others
at paragraph 10); where a litigant had no
other avenue for relief available (
Besserglik v Minister of Trade, Industry
and Tourism and Others
at paragraph 6); where there was a compelling
national interest in the determination of an issue in the light of a pending
election
(
Executive Council of the Western Cape Legislature and Others v
President of the Republic of South Africa and Others
at paragraphs 15 - 17)
and where parties consented to direct access and there was a real prospect that
the order made by the court
will in fact be decisive for the case (
Brink v
Kitshoff NO
at paragraph 18). The grant of direct access remains a
discretionary power of the court which will be exercised in exceptional
circumstances
only and in the light of the facts of each particular
application.
[13] I have not been persuaded that exceptional circumstances exist in this
case: in the light of the conclusions to which I have
come concerning the
inapplicability of the Constitution to the applicant’s claim against the
Fund, there is no possibility
at all that the applicant will be assisted by any
order this court may make; the respondent is opposed to the order; there is no
allegation of any disruption in the business of the Fund sufficient to warrant
the grant of direct access; nor has it been shown
that an appropriately
qualified litigant would have difficulty in approaching this court for relief;
nor are there any other particular
circumstances suggested by the applicant
which would warrant the grant of direct access in this case. In the
circumstances, it is
not an appropriate case in which to grant direct
access.
[14] Neither the applicant nor the respondent sought a costs order and none is
made.
Order
[15] The matter is remitted to the Transvaal Provincial Division.
C.M.E. O'REGAN
JUDGE OF THE CONSTITUTIONAL COURT OF
SOUTH AFRICA
Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler
J, Langa J, Madala J,
Mokgoro J, Ngoepe AJ and Sachs J concur in the judgment
of O'Regan
J.
For the applicant: WH Trengove SC and I Smith instructed by Raphael Smith
Attorneys
For the respondent: JJ Gauntlett SC and DA Preis instructed by Attorneys
Mendel Cohen & Partners Inc.