Bezuidenhout v Road Accident Fund (355/2002) [2003] ZASCA 69; [2003] 3 All SA 249 (SCA) (2 June 2003)

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[2003] ZASCA 69
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Bezuidenhout v Road Accident Fund (355/2002) [2003] ZASCA 69; [2003] 3 All SA 249 (SCA); 2003 (6) SA 61 (SCA) (2 June 2003)

THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO
: 355/2002
In the matter between :
ADRIAAN BEZUIDENHOUT
Appellant
and
THE ROAD ACCIDENT FUND
Respondent
___________________________________________________________________________
Before: V
IVIER,
FARLAM, CAMERON, CONRADIE JJA & SHONGWE AJA
Heard: 13 MAY 2003
Delivered:
2
JUNE 2003
Summary: Reg 2(1)(d) of the
regulations promulgated in terms of
s 26
of the
Road Accident
Fund Act 56 of 1996
held to be
ultra vires
.
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
VIVIER JA
VIVIER JA:
[1] The issue in this appeal is whether
reg 2(1)(d) of the regulations promulgated in terms of s 26
of the Road Accident
Fund Act 56 of 1996 ('the present Act') is
ultra
vires
the empowering provisions of the Act.
[2] The appellant ('the plaintiff') sued
the respondent ('the Fund') in the Transvaal Provincial Division for
payment of compensation
for loss or damage resulting from injuries
suffered by him on 28 February 1999 when the vehicle in which he was
travelling left the
N1 highway. He alleged that this was caused by
the negligent driving of a motor vehicle of which the identity of
neither the owner
nor the driver thereof had been established ('the
unidentified vehicle'). The Fund pleaded that it was a single vehicle
collision
and that, if another vehicle was involved, there was no
physical contact with the plaintiff's vehicle as required by
reg 2(1)(d).
The Fund accordingly denied that it was liable to
compensate the plaintiff in terms of s 17(1) of the Act. The
plaintiff replicated
that reg 2(1)(d) was
ultra vires
s 26.
[3] At the trial Basson J agreed to deal
first with the issue of the validity of reg 2(1)(d). During
argument on this issue it
was common cause that there had been no
physical contact between the plaintiff's vehicle and the alleged
unidentified vehicle. The
learned judge held that reg 2(1)(d)
was
intra vires
and granted an order 'dismissing the
plaintiff's exception with costs'. As I have indicated this was not
an exception. In effect
the order granted was a declaratory order
that the Fund was not liable to the plaintiff so that the order was
appealable. Leave to
appeal was granted pursuant to a petition to
this Court.
[4] The date of commencement of the present
Act was 1 May 1997 and the regulations were promulgated on 25 April
1997 with effect from
1 May 1997. The accident in question was
accordingly governed by the provisions of the present Act and the
regulations promulgated
in terms thereof.
The Act
includes the regulations (s 1).
[5] Regulation 2(1)(d) provides:
'In the case of any claim for compensation referred to
in section 17(1)(b) of the Act, the Fund shall not be liable to
compensate
any third party unless —
(a) ……………….
(b) ………………..
(c) …………………
(d) the motor vehicle concerned (including anything on,
in or attached to it) came into physical contact with the injured or
deceased
person concerned or with any other person, vehicle or object
which caused or contributed to the bodily injury or death concerned.'
[6] Section
17(1) distinguishes between the liability of the Fund in the case of
a claim for compensation where the identity of the
owner or the
driver of the vehicle involved has been established and the case of a
claim for compensation involving an unidentified
vehicle. Section 17
creates liability in both cases, the only difference being that in
the case of unidentified vehicle claims the
Fund's liability is made
'subject to any regulation made under s 26'. The question then
is whether reg 2(1)(d) was a valid
exercise of the powers
granted by s 26 to the Minister to make regulations. Section
26(1) reads:
'The Minister shall or may make regulations to prescribe
any matter which in terms of this Act shall or may be prescribed or
which
may be necessary or expedient to prescribe in order to achieve
or promote the object of this Act.'
[7] In
construing s 26(1) it must be borne in mind, as a starting
point, that the present Act is the latest in a line of enactments
dating back to 1942 designed to compensate persons injured, or the
dependants of persons killed, through the negligent driving of
motor
vehicles. The intention throughout has been to give such persons the
greatest possible protection. See decisions of this Court
in cases
such as
Aetna Insurance Co v Minister of Justice
1960 (3) SA
273
(A) at 285 E-F;
S.A. Eagle Insurance Co Ltd v Pretorius
[1997] ZASCA 107
;
1998 (2) SA 656
(SCA) at 659 J;
S.A. Eagle Insurance Co Ltd v Van
der Merwe NO
1998 (2) SA 1091
(SCA) at 1095J-1096B and
Padongelukkefonds (voorheen Multilaterale
Motorvoertuigongelukkefonds) v Prinsloo
1999 (3) SA 569
(SCA) at
574 A-B. In
Pretorius
this Court said the following about the
Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 ('the MMF
Act') which was replaced
by the present Act:
'Although since 1942 legislative amendments and new
enactments were required from time to time in order to adapt to
changing needs,
and to refine and improve the whole system of
compensation, the principles and object underlying the 1942 Act and
its successors
have remained unaltered. In the result the Act was
also intended to provide the protection referred to in the
Aetna
Insurance Co
case
supra
, and it must be interpreted
accordingly.'
[8] There
is no express indication in the present Act of an intention or
general object any different from that of the previous enactments.

According to its long title the present Act provides for the
establishment of the Fund and matters connected therewith. Section
3
states the object of the fund to be 'the payment of compensation in
accordance with the Act for loss or damage wrongfully caused
by the
driving of motor vehicles'. There is no express provision in the Act
limiting or excluding liability in the case of unidentified
vehicle
claims on the basis of lack of physical contact.
[9] Counsel for the Fund submitted
that s 26(1) by implication empowers the Minister to impose by
regulation the requirement
of physical contact. Since the exclusion
of liability in non-contact cases could hardly be said to 'achieve or
promote the object
of this Act', he argued that these modifying words
at the end of s 26(1) were intended to apply only to the phrase
which immediately
precedes it namely 'regulations . . . . . which may
be necessary or expedient to prescribe'. The submission was
therefore that regulations
made by the Minister in terms of the first
part of the section namely 'to prescribe any matter which in terms of
this Act shall or
may be prescribed', such as the regulations
referred to in s 17(1)(b), may validly widen and travel beyond
the object and purpose
of the present Act.
[10] It is certainly not clear
whether the modifier at the end of s 26(1) modifies the whole
section or only the words which
immediately precede it. In my view,
however, this is of no consequence since it must in any event be
implied that s 26(1) cannot
empower the making of regulations
which widen the purpose and object of the present Act or which are in
conflict therewith. See
R v Hildick-Smith
1924 TPD 69
at 92
and Caney,
Statute Law and Subordinate Legislation
88.
Bennion,
Statutory Interpretation
3
rd
ed (1997) at
189 points out that underlying the concept of delegated legislation
is the basic principle that the legislature delegates
because it
cannot directly exert its will in every detail. All it can in
practice do is to lay down the outline. This means that
the intention
of the legislature, as indicated in the enabling Act, must be the
prime guide to the meaning of delegated legislation
and the extent of
the power to make it. Bennion continues as follows:
'The true extent of the power
governs the legal meaning of the delegated legislation. The delegate
is not intended to travel wider
than the object of the legislature.
The delegate's function is to serve and promote that object, while at
all times remaining true
to it.'
In the case of
Utah Construction
and Engineering (Pty) Ltd and Another v Pataky
[1966] 2 WLR 197
(PC),
[1966] AC 629
(PC), the Privy Council considered the validity
of a regulation made in terms of a statutory provision which
empowered the Governor
of New South Wales to 'make regulations not
inconsistent with this Act prescribing all matters which are required
or authorised to
be prescribed or which are necessary or convenient
to be prescribed for carrying out or giving effect to this Act'.
Dealing with
the argument that the regulation in issue could be
justified as being within the empowering section, the Privy Council
said at 202
(adopting a statement in the judgment of the High Court
of Australia in
Shanahan v Scott
[1957] HCA 4
;
(1956) 96 CLR 245
at 250)
that the power delegated by an enactment:
'does
not enable the authority by regulations to extend the scope or
general operation of the enactment but is strictly ancillary.
It will
authorise the provision of subsidiary means of carrying into effect
what is enacted in the statute itself and will cover
what is
incidental to the execution of its specific provisions. But such a
power will not support attempts to widen the purposes
of the Act, to
add new and different means of carrying them out or to depart from or
vary the plan which the legislature has adopted
to attain its ends.'
[11] The exclusion of liability in non-contact cases
falls outside the object and purpose of the present Act. In fact it
runs counter
to the intention of the present Act which, as I have
said, is designed to give the greatest possible protection to victims
of the
negligent driving of motor vehicles.
[12] There is good reason for the provision
in s 17(1)(b) making the Fund's liability in the case of claims
involving unidentified
motor vehicles subject to regulations issued
in terms of s 26(1). As Harms JA pointed out in the case of
Mbatha v Multilateral Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997 (3)
SA 713
(SCA) at 718 H, the possibility of fraud is greater in
unidentified vehicle cases since it is usually difficult for the Fund
to find
evidence to controvert the claimant's allegations.
Regulations of a regulatory or evidentiary kind designed to eliminate
fraud and
facilitate proof would thus fall within the power to
regulate. But these would be truly incidental or ancillary to the
object of
the Act. The exclusion of liability in reg 2(1)(d),
however, allows the delegate to travel wider than the object and
purpose
of the legislature and must accordingly be held to be
ultra
vires
.
[13] Any doubt about the meaning of s 26(1)
is, in my view, removed when regard is had to the pre-existing
legislation (cf
Ebrahim v Minister of the Interior
1977 (1) SA
665
(A) at 680 A-D and
Prinsloo's
case,
supra
at 567
A-B). Section 32(1)(b) of the Motor Vehicle Insurance Act 29 of 1942,
as amended by s 22 of Act 60 of 1964, specifically
empowered the
Minister to make regulations 'limiting and controlling the right of
any person' to payment from the Contribution Fund
in a case involving
an unidentified vehicle. Act 29 of 1942 was replaced by the
Compulsory Motor Vehicle Insurance Act 56 of 1972.
Section 32(1)(g)
of this Act contained a similar provision empowering the Minister to
make regulations restricting the MVA Fund's
liability to pay
compensation in the case of an unidentified vehicle. Both these Acts
thus expressly authorised the Minister to make
regulations limiting
or restricting liability to pay compensation in the case of an
unidentified vehicle. Act 56 of 1972 was replaced
by the Motor
Vehicle Accident Act 84 of 1986 which was in turn replaced by the MMF
Act. The two latter Acts contained no provision
similar to those of
its precursors empowering the Minister to limit or restrict liability
in the case of claims involving an unidentified
vehicle. Section 8 of
Act 84 of 1986 and art 40 of the Agreement in the MMF Act
provided in almost identical terms for the liability
of the
respective Funds without distinguishing between claims for
compensation where the identity of the owner or driver of the vehicle
involved had been established and claims for compensation involving
an unidentified vehicle. Section 17(1) of Act 84 of 1986 empowered
the Minister to make regulations as to:
'(a) ………………
(b) any matter which in terms of this Act is required or
permitted to be prescribed by regulation;
(c) in general, any matter which he may consider
necessary or expedient to prescribe in order to attain or promote the
objects of
this Act.'
Section 6(1) of the MMF Act
provided that 'the Minister may make regulations to give effect to
any provision of the Agreement as
applicable in the Republic'.
[14] It will be seen that s 26(1) of
the present Act and s 17(1)(a) and (b) of Act 84 of 1986 provide
for the same two categories
of regulations in almost identical
language. The two categories are regulations which shall or may be
prescribed in terms of the
Act and those which may be necessary or
expedient to prescribe. In s 17(1) of Act 84 of 1986 the
qualifying words 'in order
to attain or promote the objects of this
Act' appear only at the end of sub-para (c) whereas in s 26(1)
of the present Act sub-paras
(b) and (c) of s 17(1) of Act 84 of
1986 are conflated into one sentence appearing in one sub-section,
with the qualifier appearing
at the end of the sentence. In my view
the changes indicate an intention to apply the qualifier to both
categories (cf
Collie NO v The Master
,
1972 (3) SA 623
(A) at
630A).
[15] In
Prinsloo
this Court
considered the validity of reg 3(1)(a)(v) issued in terms of s 6
of the MMF Act. This was the precursor to the
present reg 2(1)(d)
and was identical to the present reg 2(1)(d). In holding that
reg 3(1)(a)(v) was
ultra vires
Smalberger JA, who delivered
the unanimous judgment of this Court, said at 574D-575A):
'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". 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 718C).
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 óf die Wet óf 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 omgemagtigde 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
aanspreeklikheidsuitsluiting by wyse
van regulasie neer te lê
nie" (sien die gerapporteerde uitspraak op 314e-f). Die plaas
van 'n andersins omgemagtigde 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.'
[16] What Smalberger JA said in the
passage quoted above about the nature and extent of the power
conferred on the Minister in the
empowering section of the MMF Act
applies with equal force to s 26(1) of the present Act. The mere
fact that s 17(1) of
the present Act, unlike its precursors in
Act 84 of 1986 and the MMF Act, distinguishes between claims
involving identified and unidentified
vehicles, is insufficient
indication of an intention to widen the regulatory power under
s 26(1) so as to authorise the Minister
to make regulations
which are inconsistent with the object and purpose of the Act. Had
the legislature intended to empower the Minister
to exclude liability
by regulation it would have said so expressly as it did in the
empowering sections of the 1942 and 1972 Acts.
[17] In
Prinsloo
Smalberger JA
said at 575C-D that there was good reason for the requirement of
physical contact in unidentified vehicle cases. He
relied on the
judgment in
Mbatha
at 718J where Harms JA did not mention the
requirement of physical contact but merely stated generally, as I
have indicated above,
that there was good reason for having stricter
requirements for unidentified vehicle cases. Smalberger JA also
relied on
Khumalo v Multilateral Motor Vehicle Accidents Fund
[1997] 2 All SA 341
(N) at 346 f-g where Broome DJP gave the
prevention of fraudulent claims as the reason for the requirement of
physical contact. No
other reason has been suggested for this
requirement and I can think of none. Assuming a case of
well-evidenced and fully proved
negligent driving of an unidentified
vehicle, as one should do in considering the matter. The
undifferentiated imposition of the
requirement of physical contact
may well be regarded as unreasonable. Postulate the case of the
negligent driver of an unidentified
vehicle swerving on to his
incorrect side of the road, his vehicle just scraping one oncoming
car, missing a second one altogether
but forcing both these vehicles
to leave the road in trying to avoid him. To exclude by regulation a
claim for compensation in the
one case but not in the other may well
be said to be such unequal discrimination as to be invalid for
unreasonableness since the
intention could never have been to
authorise it (
S v Mahlangu and Others
1986 (1) SA 135
(T) at
144B-145A). It is not, however, necessary for me to decide this
point.
[18] For the reasons I have given the
Court
a quo
should have held that reg 2(1)(d) is
ultra
vires
. The case of
Khasane v Road Accident Fund
[2002] 4
All SA 40
(W) must accordingly be regarded as having been wrongly
decided.
[19] The appeal succeeds with costs
including the costs of two counsel. The order of the Court
a quo
is altered to read:
'It is
declared that reg 2(1)(d) of the regulations issued in terms of
s 26(1) of Act 56 of 1996 is
ultra vires
.' The defendant
is ordered to pay the
costs of
the hearing relating to the validity of reg 2(1)(d).
__________________
VIVIER JA
FARLAM JA)
CAMERON JA)
CONRADIE
JA) CONCUR
SHONGWE
AJA)