Road Accident Fund v Thugwana (575/2002) [2003] ZASCA 139; [2004] 1 All SA 275 (SCA) (28 November 2003)

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[2003] ZASCA 139
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Road Accident Fund v Thugwana (575/2002) [2003] ZASCA 139; [2004] 1 All SA 275 (SCA); 2004 (3) SA 169 (SCA) (28 November 2003)

THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number :
575/2002
Reportable
In
the matter between :
ROAD
ACCIDENT FUND
Appellant
and
SAMUEL FELI THUGWANA
Respondent
CORAM : HARMS, SCOTT, BRAND, CLOETE JJA,
VAN HEERDEN AJA
HEARD :
21 NOVEMBER 2003
DELIVERED :
28 NOVEMBER 2003
Summary:
Regulation 2(1)(c) contained in
Government Gazette
17939
of 25 April 1997 and made in terms of
s 26
of the
Road Accident Fund
Act 56 of 1996
, interpreted, held to be peremptory and held not
ultra
vires
.
_________________________________________________________
JUDGMENT
CLOETE JA
CLOETE JA
[1] This appeal raises three questions: the meaning of the regulation
made in terms of the Road Accident Fund Act, 56 of 1996 (‘the
Act’)
which requires a person injured in a ‘hit and run’ motor vehicle
accident to furnish an affidavit to the police; whether
that
regulation is peremptory; and if it is, whether it is
ultra vires
.
[2] The obligation to provide compensation imposed on the Road
Accident Fund (‘the Fund’) or an agent is contained in s 17(1)
of
the Act which provides:
‘
(1) The Fund or an agent shall─
(a) subject to this Act, in the case
of a claim for compensation under this section arising from the
driving of a motor vehicle
where the identity of the owner or the
driver thereof has been established;
(b) subject to any regulation made
under section 26, in the case of a claim for compensation under
this section arising from the
driving of a motor vehicle where the
identity of neither the owner nor the driver thereof has been
established,
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 of the owner of the
motor vehicle or of his or her employee in the performance of the
employee’s duties as
employee.’
It is immediately apparent that a distinction is
drawn between the situation where the identity of the owner or driver
has been established
and the situation where the identity of neither
has been established. In the former case, the liability of the Fund
or an agent is
stated to be ‘subject to this Act’ and in the
latter, ‘subject to any regulation made under s 26’.
[3] Section 26 in turn provides
inter alia
─
‘
(1) The Minister shall or may make
regulations to prescribe any matter which in terms of this Act shall
or maybe prescribed or which
may be necessary or expedient to
prescribe in order to achieve or promote the object of this Act.’
[4] The regulation at issue in the present appeal
is regulation 2(1)(c) contained in
Government Gazette
17939 of
25 April 1997. It provides:
‘
2(1) In the case of any claim for
compensation referred to in s 17(1)(b) of the Act, the Fund shall not
be liable to compensate any
third party unless─
(c) 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 particulars of the
occurrence concerned were fully set out’.
[5] In the present matter the respondent, as
plaintiff, instituted an action for compensation against the
appellant, as defendant,
for damages for injuries sustained in an
accident as contemplated in s 17(1)(b) of the Act. The appellant
delivered a special plea
alleging non-compliance by the respondent
with regulation 2(1)(c). The respondent replicated that he had
complied with the provisions
of the regulation; alternatively, that
he had substantially complied therewith; and further alternatively,
that the provisions of
the regulation were
ultra vires
the
Act.
The Court
a quo
(De Vos J) dismissed the special plea. The present appeal is with the
leave of that Court.
[6] The regulation is not a model of clarity. The
difficulty is occasioned by the double qualifications ‘if
reasonably possible’
and ‘after being in a position to do so’.
In order to give meaning to both phrases one has to envisage the
situation where the
claimant is in a position to submit an affidavit
but it is not reasonably possible for this to be done ─ otherwise
the two phrases
would be synonymous and such a construction would
offend against the trite principle of statutory interpretation which
strives to
avoid tautology.
[7] If a claimant is physically or mentally
incapable of making an affidavit, it cannot be said that he or she is
in a position to
do so. He or she would also have to be in possession
of the facts which the affidavit has to contain: what is required is
an affidavit
‘in which particulars of the occurrence concerned were
fully set out’. Once the claimant is in a position to make the
affidavit,
the fourteen-day period begins to run. But the claimant
may have difficulties in making the necessary arrangements to depose
to an
affidavit or to submit it to the police. If the affidavit is
submitted more than fourteen days after the claimant was in a
position
to do so, the question would arise whether it was reasonably
possible for this to have been done within the fourteen-day period.
If so, the Fund will incur no liability. If not, the fourteen-day
period would be extended for so long as it was not reasonably
possible
for the claimant to have submitted it ─ but no longer. Any
other interpretation would absolve a claimant from the obligation to
submit an affidavit at all if this was not reasonably possible within
the fourteen-day period, or provide no time limit in such a
case for
the furnishing of the affidavit; and manifestly neither
interpretation can have been what the Legislature intended. Against
this background I turn to the facts of the present matter.
[8] The accident occurred on 17 November 1998 on
the Springs/Kwa Thema Road when a motor vehicle of which the identity
of neither
the owner nor driver are known collided with the
respondent, who was a pedestrian. The respondent was taken from the
scene to various
hospitals where he remained for between five and six
weeks. During the time he was in hospital the respondent was visited
by a policeman
to whom he orally gave details of the accident. In
February 1999 the respondent went to the Springs police station to
ascertain whether
the accident had been reported. It had not. He
subsequently met one Joshua Khoza, an ex-policeman who described
himself in evidence
as an ‘assessor’, who took a statement from
him and accompanied him to the Delmas police station where the
statement was sworn
to before a commissioner of oaths on 28 February
2000. That affidavit was handed by the respondent to his attorney.
The respondent
deposed to a second affidavit on 14 November 2000
which his attorney forwarded to the appellant with his claim for
compensation,
and a third affidavit on 29 August 2002, i.e. shortly
before the trial commenced, in which he formally reported the
accident to the
police.
[9] On these facts it is plain that the respondent
was in a position, in the sense discussed above, to submit the
affidavit required
by the regulation to the police whilst he was
still in hospital, and that it was reasonably possible for him to
have done so at the
latest in February 1999. It is also plain that it
was only on 29 August 2002 that an affidavit was submitted to the
police: the first
affidavit was sworn to at a police station, but not
left there and it was accordingly not ‘submitted’, i.e. furnished
or provided
for their consideration, to the police ─ the policeman
concerned merely acted as a commissioner of oaths; and the second
affidavit
was not even sworn to at a police station, much less
submitted to the police ─ it was sent to the appellant.
[10] The Court below reasoned as follows:
‘
[M]yns insiens lê die
antwoord daarin dat nie gesê kan word dat die eiser in ‘n
posisie was om ‘n beëdigde verklaring
af te lê alvorens
hy vasgestel het dat so ‘n verklaring wel afgelê moet word
nie. Die betekenis van “posisie” soos
hier gebruik sluit in al
die omstandighede waarin ‘n mens jou bevind. Dit sou sekerlik
insluit die feit dat ‘n persoon moet wéét
dat so ‘n
verklaring afgelê moet word, andersins kan tog nie
geargumenteer word dat die persoon in ‘n posisie was om die
verklaring af te lê nie. Een van die omstandighede wat dus in
ag geneem moet word wanneer bepaal moet word of ‘n persoon
in
sodanige posisie is, is om na die feitlike kennis van die eiser te
kyk. In die onderhawige geval is dit nie betwis dat die eiser
nooit
bewus was van die feit dat so ‘n verklaring afgelê moet word
nie.’
I respectfully disagree. Harms JA stated in
Mbatha v
Multilateral Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997
(3) SA 713
(SCA) at 718H─I:
‘
In these cases the possibility of fraud is greater;
it is usually impossible for the Fund to find evidence to controvert
the claimant’s
allegations; the later the claim the greater the
Fund’s problems….’
The purpose of the regulation is to reduce these
problems. If the regulation is interpreted to require subjective
knowledge of the
provisions of the regulation on the part of the
claimant before the obligation to furnish the affidavit arises, this
purpose would
be defeated.
[11] That brings me to the question whether the
regulation is peremptory. It clearly is. It provides a penalty for
non-compliance,
namely, the Fund incurs no liability to the claimant.
That is decisive. In
Nkisimane & Others v Santam Insurance Co
Limited
1978 (2) SA 430
(A) this Court considered whether the
provisions of s 25(1) of the Compulsory Motor Vehicle Insurance Act
were peremptory. That section
provided that a claim for compensation
had to be set out in the prescribed manner on a prescribed form sent
or delivered to the authorised
insurer liable to pay it. Section
25(2) provided that no claim was enforceable by legal proceedings
before ninety days had expired
from the date on which the claim was
so sent or delivered. Section 24(1) fixed the period of prescription
of a claim and provided
that prescription would not run during the
ninety-day period. Trollip JA held in regard to s 25(1) at 434H─
in
fine
:
‘
Moreover ─ and this is a
decisive factor in rendering it peremptory (see
Sutter’s
case
supra
at 174) ─ an effective sanction for non-compliance is
provided in ss 25(2) and 24(1). They in effect enact that, unless the
requirement
is complied with, the claim cannot be enforced by legal
proceedings, the running of prescription is not suspended, and the
claim
will ultimately become prescribed. Consequently counsel were
right in treating this requirement as being peremptory.’
[12] The next question which arises for decision
is whether the regulation is
ultra vires
. In
Padongelukkefonds
(voorheen Multilaterale
Motorvoertuigongelukkefonds) v
Prinsloo
1999 (3) SA 569
(SCA) this Court referred
inter alia
to regulation 3(1)(a)(iii) of the regulations contained in
Government
Gazette
12151 of 27 October 1989 and made in terms of s 6 of the
Multilateral Motor Vehicle Accidents Fund Act 93 of 1989. That
regulation
was in identical terms to the regulation in question in
the present appeal. The Court said
obiter
at 576B─C that the
regulation ‘is prosesregtelik van aard en het betrekking op die
voorlegging en voortsetting van eise (vgl
Mbatha
se saak
supra
op 718F), nie op die bepaling van aanspreeklikheid nie’ and
accordingly appeared to give effect to the Agreement establishing a
Multilateral Motor Vehicle Accidents Fund, which was the law then
applicable to motor vehicle accidents by virtue of Act 93 of 1989.
In
the passage in
Mbatha
mentioned by the Court in coming to that
conclusion, Harms JA referred to ‘the general rule that the right
to prescribe time limits
within which procedural acts may be done is
inherent in the right to regulate.’
[13] Harms JA dealt in
Mbatha
with what he
described as ‘a rather sweeping statement’ by Goldblatt J in
Zeem
v Mutual & Federal Insurance Company Limited
1996 (4) SA 476
(W) at 482D─F to the effect that the intention of the Legislature
could never have been to give the Minister the right to prevent
injured parties from claiming and recovering damages if they failed
timeously to file certain documents. The learned judge of appeal
said
at 718F─G:
‘
If Goldblatt J were correct, it
would in the present case mean that no conditions for the liability
of the Fund could have been prescribed.
Since it is inherent in a
time limit that a failure to comply therewith leads to the loss of
the relevant right, any time limit would
have been
ultra vires
.’
[14] In
Bezuidenhout v Road Accident Fund
[2003] 3 All SA 249
(SCA) Vivier JA said (para [12]):
‘
There is good reason for the
provision in section 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 718H, 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 to facilitate proof would thus fall within the
power to regulate. But these would be truly incidental or ancillary
to the object
of the Act.’
[15] There can be no doubt in view of the approach
adopted in the three judgments of this Court to which I have referred
─
Mbatha
,
Prinsloo
and
Bezuidenhout
─ that
the regulation in question in this appeal is not
ultra vires
.
It is regulatory in nature, designed to eliminate fraud or facilitate
proof. It stands in contra-distinction to the regulations
made under
the Multilateral Motor Vehicle Accidents Fund Act and the present Act
which required that the unidentified motor vehicle
had to make
physical contact with the injured person, the deceased or anything
which caused the injury or death. Those regulations
were held to be
ultra vires
, in respectively,
Prinsloo
and
Bezuidenhout
because they ran contrary to the intention of the Legislature,
namely, to give the greatest possible protection to victims of the
negligent driving of motor vehicles (
Prinsloo
at 573I/J─574D
and 575I─576A;
Bezuidenhout
para [11]). It follows from the
conclusion reached in this paragraph that
Makwetlane v Road
Accident Fund
[2003] JOL 10428
(W) was wrongly decided and it is
overruled.
[16] Subject to what is said in the next
paragraph, the effect of the regulation is to deprive a claimant such
as the respondent of
a valid claim in the event of non-compliance
with its provisions. Indeed, that is likely to be the situation in
the vast majority
of cases as the vast majority of claimants are
unlikely to be aware of the requirements of the regulation.
Nevertheless, it must
be born in mind that, as was pointed out in
Mbatha
at 718I, whilst in the identified vehicle case the
claim against the Fund or an agent lies instead of the claim against
the wrongdoer,
the claimant in a case such as the present is given an
enforceable right in a case where there otherwise would not have been
any.
[17] The conclusions reached above do not
necessarily put an end to this matter however. The plaintiff did
submit a claim to the defendant
as required by s 24(1) of the Act.
Section 24(5) provides:
‘
If the Fund or the agent does not,
within 60 days from the date on which a claim was sent by registered
post or delivered by hand
to the Fund or 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.’
It may be that this section could provide an
answer to the special plea. Counsel were unable to make considered
submissions on the
law and the facts are not before the Court. The
defendant’s counsel had no objection to leave being granted to the
plaintiff to
amend his replication, if so advised, to place reliance
on s 24(5). That course commends itself for otherwise the plaintiff
may be
done an injustice. At the same time the order which this Court
makes must provide for the eventuality that the plaintiff does not
amend his replication so, in effect, conceding the special plea.
[18] I make the following order:
1. The appeal succeeds, with costs. The order of
the Court below is set aside and the following order substituted
therefor:
‘
(a) The plaintiff is given leave to deliver an
amendment to his replication to raise the provisions of s 24(5) of
the Act in answer
to the special plea within 15 days.
(b) If the amendment contemplated in paragraph (a)
is not delivered timeously or within such further period as this
Court might
allow on good cause shown, the plaintiff’s claim is
dismissed with costs.
(c) The plaintiff is ordered to pay the costs of
the hearing on the special plea.’
2. The period of 15 days referred to above shall
run from the date of this order.
____________________
T D CLOETE
JUDGE
SUPREME COURT OF APPEAL
Concur:
Harms
JA
Scott
JA
Brand
JA
Van
Heerden AJA