About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2000
>>
[2000] ZASCA 53
|
|
Moloi and Others v Road Accident Fund (413/98) [2000] ZASCA 53; 2001 (3) SA 546 (SCA) ; [2000] 4 All SA 576 (A) (29 September 2000)
Case No 413/98
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter
of
ANTONICA MOLOI
1st
Appellant
DINAH GAMBU
2nd
Appellant
EVELINAH NGWENYA
3rd
Appellant
and
ROAD ACCIDENT FUND
Respondent
CORAM
: Smalberger, Vivier, Howie,
Streicher JJA
et
Farlam AJA
DATE OF HEARING
:
12 September 2000
DATE OF JUDGMENT
: 29
September 2000
Multilateral Motor Vehicle Accidents Regulations,
1989 - Regulation 3(2)(a)(i) - Validity of
J U D G M E N T
/FARLAM AJA:. . .
FARLAM AJA
:
[1] This is an appeal from a judgment of
Claassen J sitting in the Witwatersrand Local Division of the High Court, who
upheld a special
plea by the defendant (respondent) to the particulars of claim
of the plaintiffs (appellants) and dismissed their claims with costs.
In what
follows I shall refer to the parties as they were described in the Court
a
quo
.
[2] The question for decision in this case is whether a
minor’s claim arising under article 40 of the Agreement establishing
a
Multilateral Motor Vehicle Accidents Fund (which is set out in the Schedule to
the Multilateral Motor Vehicle Accidents Fund Act
93 of 1989 (as amended)
prescribes on the expiry of a two year period after the claim arose in a case
where the motor vehicle concerned
was unidentified and no claim for compensation
for loss or damage suffered by the minor was delivered to the Multilateral
Motor
Vehicle Accidents Fund within such period. (In what follows I shall
refer to the Agreement set out in the Schedule to Act 93 of
1989 as “the
Agreement” and to the Multilateral Motor Vehicle Accidents Fund as
“the Fund”.)
[3] Each of the three plaintiffs in this matter instituted
action
against the Fund in her capacity as mother
and natural guardian of her minor child, who was allegedly injured in a
collision with
an unidentified motor vehicle which was negligently driven by
some person unknown.
[4] The defendant filed a special plea essentially
raising the defence that the plaintiffs’ claims had prescribed, as well
as
a plea on the merits.
[5] Prior to the hearing of the matter in the Court
a quo
the parties agreed that the issues raised by the defendant’s
special plea and the plaintiffs’ replication thereto should
be dealt with
pursuant to a stated case in terms of Rule 33(1) of the Uniform Rules of
Court.
[6] The case stated by them reads as follows:
“1. The three Plaintiffs act in this matter in their representative
capacity as mothers and guardians of three minor children
who Plaintiffs allege
were injured in a motor vehicle collision which occurred on 30 September
1994.
The Plaintiffs claim compensation in terms of the provisions of the Multilateral
Motor Vehicle Accidents Fund Act No. 93 of 1989.
The Plaintiffs’ minor children were injured as a result of a collision
with a motor vehicle in respect of which neither the
identity of the owner nor
driver can be established.
The Plaintiffs’ claims for compensation were delivered to the Defendant in
October,
alternatively
November 1996.
Defendant maintains that by virtue of the provisions of Regulation 3(2)(a)(i)
Plaintiffs’ claims for compensation had to be
delivered to the Defendant
within two years from the date on which the claim arose and furthermore that by
virtue of the provisions
of Regulation 3(2)(a)(ii) the provisions of Regulation
3(2)(a)(i) apply to all third parties and Claimants irrespective of whether
they
are subject to any legal disability.
Plaintiffs admit that the claim forms were delivered to the Defendant outside
the two year time period from which the claims arose.
Plaintiffs maintain, however, that insofar as the provisions of Regulation 3
provide that prescription runs against minors, the
provisions of the regulation
are
ultra vires
.
Plaintiffs contend furthermore that the provisions of the
Prescription Act No.
68 of 1969
and in particular
Section 13
and
Section 16
thereof are applicable to
the present case, their effect being that prescription does not run against the
minors.
The sole question for decision therefore is whether the minors’ claims
have become
prescribed.”
[7] In the
Agreement the Multilateral Motor Vehicle Accidents Fund is called the
“MMF”. Chapter XII of the Agreement,
which is headed
“LIABILITY OF MMF AND APPOINTED AGENTS” commences with article 40,
which reads as follows:
“The MMF or its appointed agent, as the case may be, shall subject to the
provisions of this Agreement be obliged to compensate
any person whomsoever (in
this Agreement called the third party) for any loss or damage which the third
party has suffered as a
result of
–
any bodily injury to himself;
the death of or any bodily injury to any
person,
in either case caused by or arising out of the driving of a motor vehicle by any
person whomsoever at any place within the area of
jurisdiction of the members of
the MMF, if the injury or death is due to the negligence or other unlawful act
of the person who drove
the motor vehicle (in this Agreement called the driver)
or of the owner of the motor vehicle or his servant in the execution of his
duty.”
[8]
Section 6(1)
of Act 93 of 1989 empowers
the Minister of Transport Affairs to make regulations to give effect to any
provision of the Agreement.
The regulations made by the Minister are referred
to in the definition of “this Act” which is contained in section
1
of the Act and which reads as follows:
“In this Act, unless the context otherwise indicates –
. . .
‘this Act’ includes the regulations made under section
6.”
[9] Regulation 3(2)(a)(i) and (ii), to which
reference is made in the stated case, reads as follows:
“(2) The liability of the MMF in respect of claims which arise in terms
of this regulation shall be subject to the following
further
conditions:
(a) (i) A claim for compensation for loss or damage suffered by the claimant
shall be delivered to the MMF within two years from
the date upon which the
claim arose
mutatis mutandis
in accordance with the provisions of article
62 of the Agreement.
The provisions of subparagraph (i) shall also apply to all third parties
and claimants, irrespective of whether they are subject
to any legal
disability.”
[10] As can be seen from paragraph 8 of the stated
case the plaintiffs rely on the provisions of
sections 13
and
16
of the
Prescription Act 68 of 1969
in order to repel the defendant’s special
plea. These sections read as follows, as far as is material:
“13 (1) If –
(a) the creditor is a
minor . . .
and
the relevant period of prescription would, but for the provisions of this
subsection, be completed before or on, or within one
year after, the day on
which the relevant impediment referred to in paragraph (a) . . . has ceased to
exist,
the period of prescription shall not be completed before a year has elapsed
after the day referred to in paragraph
(i).”
“16 (1). . .[T]he provisions of this chapter [i e, Chapter III, which
deals with prescription of debts and which contains
section 13]
shall, save in
so far as they are inconsistent with the provisions of any Act of Parliament
which prescribes a specified period within
which a claim is to be made or an
action is to be instituted in respect of a debt or imposes conditions on the
institution of an
action for the recovery of a debt, apply to any debt arising
after the commencement of this
Act.”
[11] In his judgment upholding
the special plea Claassen J dismissed the plaintiffs’ contention that
regulation 3, in so far
as it provided that prescription runs against minors,
was ultra vires. He did so, largely on the basis that the ratio in the
decision of this Court in
Mbatha v Multilateral Motor Vehicle Accidents
Fund
,
[1997] ZASCA 25
;
1997 (3) SA 713
(SCA), in which it was held that regulation 3 (2) (a)
(i) is
intra vires
section 6 of Act 93 of 1989, must apply with equal
force in relation to regulation 3 (2) (a) (ii).
[12] Claassen J dealt with
the plaintiffs’ contention that sections 13 and 16 of the Prescription Act
apply (with the result
that prescription does not run in respect of a
minor’s claim in a case involving an unidentified vehicle) as follows:
“The short answer to Mr Smith’s argument [Mr Smith appeared for the
plaintiffs in the court
a quo
] is that the regulations form part of the
Act by virtue of the definition in Section 1 of the Act where the words
‘this Act’
are defined as including ‘the regulations made
under Section 6’. It is common cause that the particular regulations
concerned, are made under Section 6 and thus form part of the Act. In such
instance, it is, in my view, futile to argue that the
Prescription Act appl
ies
because the ‘Act and the Agreement’ do not stipulate anything in
regard to prescription periods applicable to claimants
under legal disabilities
in respect of unidentified vehicle cases. The fact of the matter is that the
‘regulations’
do stipulate such periods and these regulations are by
definition deemed to be part of the Act. As such, the provisions of the
Prescription Act are
ousted. Furthermore, the provisions in the
Prescription
Act providing
for prescription not to run against minors, are directly in
conflict with the provisions of Regulation 3 (2) (a) (ii) and (c) (ii)
of the
MMF Act. For the above reasons the arguments of Mr Smith cannot be
entertained.”
[13] It is convenient to deal with this
latter point first. Although
section 16
of the
Prescription Act is
not drafted
as clearly as it might be it is reasonably plain that what is intended is that
the provisions of Chapter III will apply
to all debts save where they are ousted
by the provisions of an Act of Parliament which is inconsistent and then only to
the extent
of the inconsistency. The inconsistent provisions which have to be
included in an Act of Parliament and which will oust some or
all of the
provisions of Chapter III are provisions which (a) prescribe a specified period
within which a claim is to be made;
(b) prescribe a specified period within
which an action is to be instituted in respect of a debt or (c) impose
conditions on the
institution of an action for the recovery of a debt.
Regulation 3(2)(a) is a provision falling under (c) above because it purports
to
impose conditions on the institution of an action. It follows from the plain
terms of section 16 that unless such provision
has the status of an Act of
Parliament it is invalid.
[14] I do not agree that the provisions of the
Prescription Act
are
ousted because of the fact that in
section 1
of
Act 93 of 1989 the words “this Act” are defined so as to include the
regulations made under section 6. It is clear
from the introductory words to
section 1 that the statutory definition of “this Act” applies in the
interpretation of
Act 93 of 1989 itself. There is no substantive elevation of
the regulations to the status of an Act of Parliament. It is instructive
in
this regard to compare how the regulations are dealt with in section 1 with
what is said in section 2(1) about the Agreement,
viz
:
“The Agreement . . . shall, subject to the provisions of this Act, have
the force of law and apply in the Republic of South
Africa,
as if it were an
Act of Parliament of the Republic of South Africa
.” (The emphasis is
mine.)
[15] In other words it is clear that the Agreement
has been expressly given the status of an Act of Parliament and it was
accordingly
accepted by this Court in
Road Accident Fund v Smith N O
1999
(1) SA 92
(SCA) that provisions in the Agreement dealing with prescription oust
inconsistent provisions of the
Prescription Act in
terms of
section 16
thereof.
[16] If Parliament had intended the regulations made under
section
6
of Act 93 of 1989 also to have that status so as to oust inconsistent
provisions of the
Prescription Act, I
would have expected a similar provision to
that contained in
section 2
to have been included as regards the
regulations.
[17] In the absence of such a provision it cannot be held in
my view that the regulations are to be regarded as included in Act
93 of 1989
for any purpose other than interpreting the expression “this Act”
therein and they do not have the status
of an Act of Parliament for any other
purpose. The result is that they cannot oust the provisions of Chapter III
of the
Prescription Act in
the case of a minor’s claim in terms of the
Agreement where such claim arises out of the driving of a motor vehicle of which
the identity of neither the owner nor the driver can be ascertained. It follows
that the plaintiffs’ contention as set out
in paragraph 8 of the stated
case should in my view have been upheld.
[18] Mr
Wessels
, who
appeared with Mr
van Vuuren
on behalf of the respondent, submitted that
even if the regulations did not amount to an Act of Parliament for the purposes
of
section 16
of the
Prescription Act, the
plaintiffs’ appeal should still
fail. This argument rested on the premise that the condition contained in
regulation 3(2)(a)(i)
was a condition in the proper sense of that word. He
contended that as the rights conferred on the minors in this case were
conditional
rights only, no debts, within the meaning of the
Prescription
Act, arose
in respect of which prescription could run until the condition to
which they were subject had been fulfilled. After the expiry
of the two year
period referred to in
regulation 3
(2) (a) (i), he submitted, no claims for
compensation having been delivered to the Fund on behalf of the minors concerned
and the
condition having thus failed, the conditional rights which the minors
had against the Fund fell away.
[19] The reason these rights fell away was
not, he contended, because they had prescribed but because, no unconditional
debt having
arisen, prescription never ran at all and the extinction of the
minors’ conditional rights simply occurred when the condition
on which
they were dependent failed on the expiry of the two year period.
[20] In order for this contention to succeed one has to be
satisfied
as to two things: (1) that the
“condition” referred to in
regulation 3(2)(a)(i)
is a suspensive
condition properly so-called:
i e
, an uncertain future event pending the
happening of which the minors concerned have no enforceable rights against the
Fund, and (2)
that the Minister had the power under section 6 of the Act to
impose the condition contended for.
[21] As to the first point it is instructive to have regard to
the
decision of this Court in the
Mbatha
case
supra
. Although one has difficulty with the result of the case, for a
reason which I shall set out below, it considered the “condition”
referred to in regulation 3(2)(a)(ii) to be a prescriptive period and not a
condition properly so-called (see 716C where reference
is made to a so-called
condition and 720A and E where the two year period imposed by regulation
3(2)(a)(i) is referred to in terms
as a prescriptive period).
[22] I said earlier that one has difficulty with the result to which
the Court came in the
Mbatha
case,
supra
. This is because counsel for the appellant in that case did not
rely on
section 16
of the
Prescription Act and
no consideration was given to the
aspect of the matter dealt with above.
[23] As to the second point, an
analogous argument was considered by this Court in
Padongelukkefonds
(Voorheen Multilaterale Motorvoertuigongelukkefonds) v Prinsloo
1999 (3) SA
569
(SCA), in which it was held that
regulation 3(1)(a)(v)
, which provided that
the Fund would not be liable, in a case involving an unidentified motor vehicle
where there was no physical
contact between the vehicle and the injured person
or the deceased or anything which caused the injuries or death, was
ultra
vires
.
[24] The Court’s reasons for coming to this conclusion
appear
from the following passage (at 574 F -
575A):
“Die bepaling in reg 3(1)(a)(v) dat, as voorvereiste vir aanspreeklikheid
aan die kant van die MMF, daar in die geval van `n
ongeïdentifiseerde
voertuig fisiese kontak moet wees, vind, soos reeds aangedui, nie weerklank in
òf die Wet òf
die Ooreenkoms nie. Dit stel `n beperking op
aanspreeklikhheid wat onbestaanbaar is met die wye betekenis van art 40 van die
Ooreenkoms
en wat die trefwydte daarvan verminder. Dit gee nie gevolg aan art
40 of enige ander bepaling van die Ooreenkoms nie; die teenoorgestelde
is eerder
waar (vgl
S v Grindrod Transport (Pty) Ltd and Others
1980 (3) SA 978
(N)
op 983F-G). Die Minister se bevoegdheid kragtens art 6(1) van die Wet is `n
suiwer regulerende bevoegdheid. `n Verbod wat
volgens so `n bevoegdheid
opgelê word, is ongeldig (
R v Williams
1914 AD 460
op 465 en 467;
S v Perumal
1977 (1) SA 526
(N) ). Hierdie beginsel behoort eweneens te
geld waar `n reg ontneem word as gevolg van `n ongemagtigde beperking van
aanspreeklikheid,
soos in die onderhawige geval. Ek stem ook saam met die Hof
a quo
dat ‘(a)rt 6 van die Wet dui nie die bedoeling aan tot die
verleen van die bevoegdheid om aanspreeklikhheidsuitsluiting by
wyse van
regulasie neer te lê nie’ (sien die gerapporteerde uitspraak op
314e-f). Die plaas van `n andersins ongemagtigde
beperking op die MMF se
aanspreeklikheid is ook nie redelikerwyse diensbaar (‘reasonably
incidental’) aan die Minister
se verleende bevoegdhede nie. Gevolglik
het die Hof
a quo
myns insiens tereg bevind dat reg 3(1)(a)(v)
ultra
vires
is.”
[25] In my view, by parity of reasoning, it is clear that the
Minister was not empowered by
section 6
of Act 93
of 1989 to endeavour
to convert the unconditional liability created by
article 40 into a
conditional liability.
[26] I do not think that the
position is altered by the fact that
section 2(1) of the 1989 Act provides
that the Agreement has the force of law “subject to the provisions of
this Act”
(which includes the regulations). The purpose of the Agreement,
which was an agreement between the Government of the Republic of
South Africa
and the Governments of the then independent (or quasi-independent) TBVC states,
was clearly to introduce a uniform system
in terms of which persons who had
suffered loss arising out of the driving of motor vehicles in the Republic of
South Africa or any
of the TBVC states through personal injuries or the deaths
of persons who owed them a duty of support would be able to recover
compensation
from the Fund or one of its appointed agents. To this end article
40 provided that the Fund or its agents would be liable to persons
who suffered
such loss if the drivers or owners of the motor vehicles in question were
negligent.
[27] The purpose of creating a uniform system of liability
throughout the Republic of South Africa and the TBVC states would be defeated
if
the Minister were able by regulations applicable only in the territory of one of
the participating states to cut down or render
conditional the unconditional
liability provided for in article 40 of the Agreement. This provides a further
reason for holding
that it could never have been the intention of Parliament
when it passed the 1989 Act to empower the Minister to render the unconditional
liability created by article 40 of the Agreement conditional.
[28] It
follows for the reasons I have given that Mr
Wessels
’s alternative
submission must also be rejected.
The following order is made:
The appeal is upheld with costs, including those occasioned by the employment
of two counsel.
The order of the Court
a quo
is altered to
read:
“Defendant’s
special plea is dismissed with costs”.
__________________
I G FARLAM
SMALBERGER JA)
VIVIER JA)
HOWIE
JA)
CONCUR
STREICHER
JA)
In this regard the question
arises whether it cannot be argued that the
Mbatha
case
supra
established that the Minister did have the power contended for and that he
accordingly validly imposed the condition on the non-fulfilment
of which Mr
Wessels
relies. The difficulty one has with the
Mbatha
decision
is that counsel for the appellant in that case did not rely on
section 16
of the
Prescription Act and
no consideration was given to the aspect of the matter
dealt with above. The court was concerned with the question as to whether
the
Minister had the power under
section 6
of Act 93 of 1989 to prescribe time
limits within which procedural acts had to be done. Although it is said (at
716 C) that in
cases involving unidentified vehicles “the regulation
subjects the liability of the Fund to a so-called condition”,
later in
the judgment the two year period imposed by regulation 3 (2) (a) (i) is referred
to as a prescriptive period (see 720 A
and E). The
Mbatha
decision can
accordingly afford no support for the contention that section 6 of the 1989 Act
empowered the Minister to reduce the
ambit of Article 40 of the Agreement by
making the rights conferred thereby on injured persons conditional on their
filing a claim
in the period laid down in regulation 3 (2) (a) (i).
In
Padongelukkefonds (voorheen Multilaterale Motorvoertuig-ongelukkefonds) v
Prinsloo
1999 (3) SA 569
(SCA) this Court held that regulation 3 (1)(a) (v)
which provided that the Fund would not be liable in an unidentified vehicle
case,
where there was no physical contact between the unidentified vehicle and
the injured person was
ultra vires
.
The Court’s reasons for
coming to this conclusion appear from the following passage (at 573 I - 575
A:
“Artikel 40 is baie wyd in omvang. Dit dek alle gevalle van verlies of
skade soos beoog wat gely is as gevolg van die nalatige
bestuur van `n voertuig
op enige plek in die regsgebied van die lede van die MMF, ongeag of die
bestuurder of eienaar van die betrokke
voertuig geïdentifiseer kan word al
dan nie (
SA Eagle Insurance Co Ltd v Pretorius
[1997] ZASCA 107
;
1998 (2) SA 656
(HHA) op
660H - 661B). Dit skep dus aanspreeklikheid selfs in gevalle waar daar
andersins weens die onvermoë van `n eiser
om `n verweerder te identifiseer
geen praktiese remedie sou wees nie. Die artikel is dus volkome in
ooreenstemming met wat nog altyd
beskou is as die algemene oogmerk van die
Wetgewer in wetgewing van hierdie aard, naamlik om die wydste moontlike
beskerming aan
persone te verleen wat verlies of skade gely het soos in die
artikel beoog (
Aetna Insurance Co v Minister of Justice
1960 (3) SA 273
(A) op 286E-F). Die artikel stel geen vereiste van fisiese kontak as `n
voorwaarde vir aanspreeklikheid nie. Dit is trouens gemene
saak dat
nêrens in die Wet of die Ooreenkoms so `n vereiste voorkom nie, ondanks
die feit dat art 48 van die Ooreenkoms uitdruklik
voorsiening maak vir die
uitsluiting van aanspreeklikheid in sekere gevalle. Artikel 40 sluit dus nie
aanspreeklikheid uit in die
geval waar `n ongeïdentifiseerde voertuig nie
in fisiese kontak was met `n beseerde of `n oorledene, of die voertuig waarin
hy
of sy gereis het nie.
Artikel 6 van die Wet magtig die Minister
om regulasies uit te vaardig
‘ten einde gevolg te gee aan `n bepaling
van die Ooreenkoms
soos in die Republiek van toepassing’ (my
beklemtoning). Dit magtig nie die Minister om regulasies uit te vaardig buite
die
omvang en bestek van die Ooreenkoms wat nie redelikerwys nodig is om die
doel van art 6(1) te bereik nie. Regulasies is ondergeskikte
wetgewing
voortvloeiend uit `n gedelegeerde voorskrif. `n Regulasie moet in die lig van
die magtigende Wet uitgelê word,
nie andersom nie (
Sekretaris van
Binnelandse Sake v Jawoodien
1969 (3) SA 413
(A) op 423E). `n Regulasie
wat dus nie gevolg gee aan `n bepaling van die Ooreenkoms nie, is
ultra
vires
(
Mbatha v Multilateral Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997 (3) SA
713
(HHA) op 718 C).
“Die bepaling in reg 3(1)(a)(v) dat, as
voorvereiste vir aanspreekilikheid aan die kant van die MMF, daar in die geval
van
‘n ongeïdentifiseerde voertuig fisiese kontak moet wees, vind,
soos reeds aangedui, nie weerklank in of die Wet of die
Ooreenkoms nie. Dit
stel `n beperking op aanspreeklikheid wat onbestaanbaar is met die wye betekenis
van Art 40 van die Ooreenkoms
en wat die trefwydte daarvan verminder. Dit gee
nie gevolg aan art 40 of enige ander bepaling van die Ooreenkoms nie; die
teenoorgestelde
is eerder waar (vgl
S v Grindrod Transport (Pty) Ltd and
Others
1980 (3) SA 978
(N) op 983F-G). Die Minister se bevoegdheid
kragtens art 6(1) van die Wet is `n suiwer regulerende bevoegdheid. `n Verbod
wat
volgens so `n bevoegdheid opgelê word, is ongeldig
R v Williams
1914 AD 460
op 465 en 467;
S v Perumal
1977 (1) SA 526
(N) ). Hierdie
beginsel behoort eweneens te geld waar `n reg ontneem word as gevolg van `n
ongemagtigde beperking van aanspreeklikheid,
soos in die onderhawige geval. Ek
stem ook saam met die Hof
a quo
dat ‘(a)rt 6 van die Wet dui nie
die bedoeling aan tot die verleen van die bevoegheid om
aanspreeklikhheidsuitsluiting by wyse
van regulasie neer te lê nie’
(sien die gerapporteerde uitspraak op 314e-f). Die plaas van `n andersins
ongemagtigde
beperking op die MMJF se aanspreeklikheid is ook nie redelikerwyse
diensbaar (`reasonably incidental`) aan die Minister se verlende
bevoeghede nie.
Gevolglik het die Hof
a quo
myns insiens tereg bevind dat reg 3(1)(a)(v)
ultra vires
is.”
In my view it is clear that from the
passaage which I have quoted from the
Prinsloo
case that the Minister was
not empowered by section 6 of Act 93 of 1989 to render the unconditional rights
conferred by Article 40
conditional. It follows that
Mr Wessels’s
alternative submission cannot be upheld.
The following order is made:
The appeal is upheld with costs, including those occasioned by the employment
of two counsel;
The order of the Court
a quo
is set aside and substituted therefor is
the following:
“Defendant’s special
plea is dismissed with costs.”
_____________________
I G Farlam.