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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

CASE NO: 40955/16
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
DATE 14/01/2025
SIGNATURE

In the matter between:

P[...] B[...] obo S.B and C.B PLAINTIFF

and

THE ROAD ACCIDENT FUND DEFENDANT

JUDGMENT
______________________________________________________________________
MOGOTSI , AJ

Introduction

[1] On 19 November 2024, t his matter came before me on the unopposed motion
roll. It concerns the interpreta tion of section 17(4)(c) (ii) of the Road Accident Fund Act
56 of 1996 (the RAF Act) as amended by the Road Accident Fund Amendment Act of
2005.

Background
[2] On 10 May 2022 , Koovertjie J ordered payment of loss of supp ort in the amount
of R4,463,122.091. The issue relating to whether the statutory cap provided for in
section 17(4) (c)(ii) of the Act applies to the dependants collectively or individually , and
the quantum of the balance of the loss of support claim was postponed sine die in terms
of Rule 33(4) of the Uniform Rules of the Court .2 In essence, the plaintiff now seeks
judgment for the sum of R1,685,745.00 , which represents the balance brought about by
the difference in the loss of support calculated when applying the statutory cap
collectively to all the dependants v ersus individually .

The issue
[3] The issue to be determined is w hether the statutory cap provided for in section
17(4) (c)(ii) of the RAF Act applies collectively or individually to third-party claimant s.

The plaintiff ’s submissions

[4] To begin with, the plaintiff ’s counsel submitted that section 17 (4)(c)(ii) should be
read with 17(1) of the RAF Act . Lastly, relying on the decision in Constantia Insurance
Co Ltd v Haerne ,3 he submitted that the words “the third party” in section 17(1) should
be given a wider meaning and section 17(4)(c)(i i) connotes that the cap applies to the
third-party claimants individually and not collectively.

The applicable l aw

1 Court order granted by Kooverjie J on 10 May 2022 in the matter of Paul Bester obo S.B and C.B v
Road Accident Fund, heard in the High Court of South Africa, Gauteng Division, Pretoria.
2 "In the light of the dispute regarding the question whether the statutory cap provided for in Section 17
of the Road Accident Fund Act, 56 of 1996, is to be applied collectively to the claims of the dependants as
contended by the defendant or individually and separately as contended by the plaintiff, the balance of
the plaintiffs’ claims that he alleges is due to him and the minor children over and above the amounts
recorded in paragraphs 1(i), (1(ii) and 1(iii) above by virtue of the plaintiffs interpretation of section 17 is
hereby separated in terms of rule 33(4) from the resolved issues and postponed sine die"
3 1986 (3) SA 60 (A) .
[5] The relevant portion of the Act reads as follows:

“(4) Where a claim for compensation under subsection (1) -
...
(c) includes a claim for loss of income or support , the annual loss,
irrespective of the actual loss, shall be proportionately calculated to
an amount exceeding -
(ii) R295 322 per year, in respect of each deceased breadwinner,
in the case of a claim for loss of support."

[6] The constitutionality of the provisions limiting the liability of the Fund was
considered in Law Society of South Africa and others v Minister for Transport and
Another ,4 where the Constitutional Court , per Moseneke DCJ , found that the limitation
of compensation payable for loss of income or support does not amount to an ar bitrary
deprivation of property. T he Constitutional Court stated that:

“I have already found that the scheme, including the reduction of
compensation recoverable for loss of income or support, properly
advances the governmental purpose to make the Fund financially viable
and sustainable and to render the
compensation regime more transpare nt, predictable and equitable” .

[7] In outlining the fundamental test for statutory interpretation , the Constitutional
Court , in Cool Ideas 1186CC v Hubbard and Another ,5 said the following:

“... the words in a statute must be given their ordinary grammatical
meaning, unless to do so would result in an absurdity. There are three
important riders to this general principle, namely: (a) that statutory
provisions should always be interpreted purposively; (b) the relevant

4 2011 (1) SA 400 (CC).
52014 (4) SA 474 (CC) at para 28.
statutory provision must be properly contextualised ; and (c) all statutes
must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought to be interpreted to
preserve their constitutional validity. This proviso to the general principle is
closely related to the purposive approach referred to in (a).”

[8] Regarding the interpretation of contracts and legislati on, the Supreme Court of
Appeal i n Natal Joint Municipal Pension Fund v Endumeni Municipality6 per Wallis JA ,
in of the Supreme Court of Appeal , stated the follow ing:

“Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used in the light of
the ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and the
material known to those responsible for its production. Where more than
one meaning is possible each possibility must be weighed in the light of all
these factors. The process is objective, not subjective. A sensible meaning
is preferred to one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document. Judges must be alert
to, and guard against, the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To do so
in regard to a statute or statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context, it is to make a
contract for the parties other than the one they made. The ‘inevitable point
of departure is the language of the provision itself’, read in context and

6 2012 (4) SA 593 (SCA) paras 18 - 19.
having regard to the purpose of the provision and the background to the
preparation and production of the document”.

[9] Similarly, i n Bothma­Batho Transport (EDMS) BPK v S Bothma & Seuns
Transport (EDMS) BPK ,7 the court held as follows:

“That summary is no longer consistent with the approach to interpretation
now adopted by South African courts in relation to contracts or other
documents, such as statutory instruments or patents. Whilst the starting
point remains the words of the document, which are the only relevant
medium through which the parties have expressed their contractual
intentions, the process of interpretation does not stop at a perceived literal
meaning of those words but considers them in the light of all relevant and
admissible context, including the circumstances in which the document
came into being. The former distinction between permissible background
and surrounding circumstances, never very clear, has fallen away.
Interpretation is no longer a process that occurs in stages but is
'essentially one unitary exercise'. Accordingly, it is no longer helpful to
refer to the earlier approach.”

Evaluation

[10] The Road Accident Fund (the Fund) is obliged to compensate any person or a
third party for loss or damage suffered as a result of a bodily injury to himself/herself or
arising from the death or bodily injury of any other person caused by a motor vehicle
collision. Prior to 1 August 2008, the Fund was liable to pay the full amount of the claim
as proven for damages for loss of support.8 Section 17(4)(c )(ii) of the RAF Act altered
this position by introducing a monetary cap on the Fund’s liability for loss of income or
support suffered as a result of a motor vehicle.

72014 (2) SA 494 (SCA) at 499 – 495
8 Road Accident Fund v Sweatman [2015] 2 All SA 679 (SCA) at para 1.

[11] I agree with the applicant’s counsel that section 17(4)(c) (ii) should not be read in
isolation but in con junction with section 17(1) of the RAF Act which provides as follows:

“(1) The Fund or an agent shall -
...
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 or 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 the owner of
the motor vehicle or his or her employee in the performance
of the employee's duties as employee...”

[12] The key word in interpreting section 17( 1) of the RAF Act is “any person”. To
enhance clarity and understanding of “any person” the legislator placed the words “the
third party” in brackets . Therefore, a proper interpretation of section 17 (1) of the RAF
Act entails interpreting both keywords . The phrase “any person” is a general term that
refers to anyone without specifying a particular person and implies that any person is
treated as a single entity . In Constantia Insurance Co Ltd v Haerne ,9 the Appellate
Division had to interpret section 22(2)(a) of the Compulsory Motor Vehicle Insurance Act
56 of 1972 (the MMF Act ),10 which is the equivalent of section 17 (1) of the RAF Act, and
determine whether the liability of an insurer under section 22(1)(aa) of the Compulsory
Motor Vehicle Insurance Act 56 of 1972 (the MMF Act) to the dependants of a deceased
workman limited by the provisions of s 22(2)(a) of the Act to R12 000 in respect of the

9 1986 (3) SA 60 (A) .
10 ‘Where loss or damage co ntemplated in S21 is suffered as a result of bodily injury to or death of an
employee of the driver or owner of a motor vehicle the third party is entitled to compensation under under
the Workmen’s Compensation Act 30 of 1941, in respect of such injury or death –
(a) The liability of the authorise third between the amount which the third party could, party shall be
limited to the sum representing the differ
claim of each dependant, or to an overall amount of R12 000 irrespective of the number
of claims by dependants. Considering the phrase “the third party” the court stated as
follows:

“In the words of section 21(1) a third party means "any person
whatsoever" (who has suffered a loss recoverable in terms of the Act).
Now,"any person whatsoever" may mean a number of things depending
on the use to which it is desired to be put. In section 21(1) e.g. it may
mean "every person whatsoever", or "each person whatsoever", or "all
persons whatsoever". Any one of these expressions may be substituted
equally fittingly for the one actually used without doing violence to the
wording and without affecting the application of section 21(1) at all; it really
makes no difference which expression one prefers to use. In subsection
(1)(aa), however, the position is obviously entirely different. There, the
same degree of flexibility could not have been intended for it is
inconceivable that the legislature could have intended anything but a
specific and precise meaning to be attached to its description of the
liability which it was limiting. It must accordingly be assumed that a
specific and precise meaning was intended to be attached to the words "to
compensate a third party. Having said that, I have really also said how
subsection (1)(aa) is to be interpreted. The only specific meaning which
the w ords in question can have is the literal one. What is limited, is the
insurer's liability to compensate "a third party “. And so construed, the
limitation is individual, not collective” .

[13] In my view, t he legislature's intention when enacting section 17(1) of the RAF Act
was to ensure that the Fund remains financially viable. Had the legislature intended the
cap to apply collectively, the legislature could have drafted the provision unequivocally
to cater for such eventuality. To preserve the constitutional validity , the cap must be
interpreted to avoid unfair differentiat ion between dependent s. Therefore, “ any person”
(the third party) in section 17(1) of the RAF Act should be interpreted widely to mean
that the cap in section 17 (4)(c)(ii) applies individually in respect of each deceased
breadwinner .

[14] The purposive interpretation of section 17(1) of the RAF Act supports this
conclusion . In Englebrecht v Road Accident Fund ,11 the Constitutional Court, with
reference to Aetna Insurance Co v Minister of Justice ,12 emphasised that :
“The stated primary concern of the legislature in enacting these statutes
is, and has always been, “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 a motor vehicle.”

[15] Similarly, i n Road Accident Fund v Busuku ,13 the Supreme Court of Appeal
concluded that:

“In considering the context in which the provisions appear and the purpose
to which they are directed it must be recognised that the Act constitutes
social legislation and its primary concern is to give the greatest possible
protection to persons who have suffered loss through negligence or
unlawful acts on the part of the driver or owner of a motor vehicle. For this
reason, the provisions of the Act must be interpreted as extensively as
possible in favour of third parties in order to afford them the widest
possible protection.”

[16] To afford the third parties the greatest possible protection, section 17(1) of the
RAF Act must be interpreted as widely as possible in favour of the third -party claimants .
Therefore, I find that the cap in section 17(4)(c)(ii) of the RAF Act applies individually to
third-party claimants in respect of each deceased breadwinner and that the claimants in
casu are entitled to payment of the balance of the amount awarded on 10 May 2022 .

11 2007 (6) SA 96 (CC) .
12 1960 (3) SA 273 (A) at 285E -F.
13 2020] ZACA 158 ; 2023 (4) SA 507 (SCA) at para 6.

Order

[17] The draft order marked “X” is made the order of the court.


P J MOGOTSI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA

Appearances
Counsel fo r the applicant: LJ Visser
Attorney for the applicant: S Le Roux Attorneys
Counsel for re spondents: M Sikhosana
Attor ney for respondents: The State Attorneys

Date heard: 19 November 2024
Date of Judgment: 14 January 2025