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[1993] ZASCA 150
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National Employers' General Insurance Company Ltd. v Roberts (264/92) [1993] ZASCA 150; 1994 (1) SA 38 (AD); (29 September 1993)
Case No 264/92
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
NATIONAL EMPLOYERS' GENERAL INSURANCE
COMPANY
LIMITED
Appellant
and
MICHAEL JOHN ROBERTS
Respondent
CORAM
: HOEXTER, VAN HEERDEN, VIVIER, VAN DEN HEEVER, JJA et HOWIE,
AJA
HEARD:
21 September 1993
DELIVERED:
29 September 1993
JUDGMENT
HOWIE, AJA...
2
HOWIE, AJA
Respondent was injured when the motor cycle on
which he was a pillion passenger overturned. Alleging
that the accident
was due to the driver's negligence, he
sued appellant for damages as insurer of the motor cycle
under the
Compulsory Motor Vehicle Insurance Act, 56 of
1972 ("the MVI Act"). Para 4 of his particulars of claim
reads as follows:-
"4. At the time of the accident, Plaintiff was undergoing military training
in terms of the Defence Act, No 44 of 1957 and was being
conveyed upon the motor
cycle in question while returning to his base from authorised leave during his
said period of military training."
In its plea appellant admitted the conveyance but denied the remaining
allegations in that paragraph. It also denied the alleged negligence
and
damages.
In the Court below the parties requested Tebbutt, J to decide the preliminary
question whether, assuming
3
negligence, and accepting that respondent was a military
trainee at the
relevant time and proceeding to his base, he
was returning from authorised
leave within the meaning of
s22(1) of the MVI Act. Acceding to this request,
the Court
heard evidence on that issue. In due course it answered
the question in the affirmative and made the following
order:
"1. The plaintiff is entitled to be compensated by defendant to the full
extent of such loss or damage as he may be able to prove
without any limitations
in s 22(1) of Act 56 of 1972 being applicable.
2.
Defendant is ordered to pay
the costs of these proceedings.
3.
The rest of
this action is postponed sine die."
With the leave
of the Court a quo appellant appeals against that order.
The judgment of the Court below is reported as Roberts v National Employees'
(sic) General Insurance Co Ltd. 1991(1) SA 445(C). The
facts found by the
4
learned Judge are set out at 446 C-H. Basically they are
not in dispute.
It is therefore appropriate, with due
acknowledgement and subject to some
elaboration presently,
to quote that paragraph in full for present
purposes:
"The plaintiff was born on 18 October 1959. In October 1985 he was a national
serviceman, i e a member of the Citizen Force. On that
day he started a
so-called 60-day camp in the Navy and was assigned to a base at Simonstown known
as 123 Harbour Protection Unit.
Residential accommodation at this base was very
limited and the Officer Commanding instructed the Master-at-Arms, Warrant
Officer
Leyland, to tell the servicemen starting their camp that those who lived
locally in the Cape Peninsula could live at home and not
in the barracks at the
base when they were off duty. Plaintiff was one of those who were told. In
Leyland's words 'they were encouraged
to live ashore, after having completed
-their duty'. A roster of duties was drawn up and plaintiff's shifts as a
switchboard operator
at the base were from 4:30 pm until midnight. Plaintiff
normally lived with his parents at Plumstead but had arranged with a friend
of
his that from the beginning of October until the end of December 1985 he would
live with his friend while the latter's parents
were overseas, at their house in
Scarborough. It suited plaintiff to do so because Scarborough is nearer to
Simonstown than Plumstead.
5
Plaintiff lived at the house at Scarborough during his 60-day camp and it was
his home during that period.
Shortly before 4:00 pm on 8 December 1985 and on the Main Scarborough Road,
plaintiff was a pillion passenger on a motor cycle being
driven by one S A
Hallett when the cycle overturned and plaintiff was severely injured, suffering,
inter alia, a spinal fracture
with severance of the spinal cord, leaving him
paralysed from the waist down and now confined to a wheelchair for life.
Plaintiff's own motor cycle was being repaired on that day and Hallett, who was
not a national serviceman, was taking him to Simonstown
for him to report for
duty at the base at 4:30 pm. In other words, it is common cause he was returning
to his base at Slmonstown
from his home. He was, however, it is also common
cause, not in uniform at the
time."
Tebbutt J found for respondent
on the following
reasoning. He held that on these facts, if respondent had
been returning
from leave, such leave had clearly been
authorised. As to the meaning of "leave", he considered
that the word had to bear its ordinary grammatical meaning.
In that respect he adopted certain dictionary definitions
6
according to which "leave" meant permission to be absent from one's place of
duty. . He then referred in detail to the two previous
reported decisions
dealing with the term "authorised leave" (Bray v Protea Assurance Co Ltd 1990(1)
SA 776(T) and van Eyssen v Protea
Versekeringsmaatskappy Bpk 1992(1) SA
610(C)).
The learned Judge considered that the interpretation of those words in van
Eyssen's case exemption from military duty for vacation
purposes - was unduly
narrow. Having analysed the aim, purpose and history of the relevant provisions
of s 22(1) he preferred the
reasoning in Bray's case according to which
"authorised leave" meant permission, properly granted within the framework and
structure
of the Defence Force, to be absent from one's camp or base.
Before dealing with the argument presented on behalf of appellant it is
appropriate first to refer more
7
fully to some of the evidence and also to set out the relevant legislative
provisions which pertain to the circumstances of respondent's
conveyance.
The evidential aspect concerns the reasons why respondent came to be residing
away from the base. He testified that he and his fellow-trainees
were informed
at the commencement of their training period that there was no accommodation at
the base for those whose homes were
in the Peninsula. They were therefore told
to sleep at home or to find private accommodation. This evidence goes further,
in my view,
than the summary quoted above recounts. It shows that the Cape Town
trainees were not merely offered the opportunity to leave the
base when off
duty, they were required to do so.
The other witness to give evidence, Warrant Officer Leyland, began by
resorting to expressions such as "given a choice to live ashore"
and "permitted
to go
8
ashore". In answer to the pointed question whether the
trainees were
"virtually told" to live ashore he first said
"encouraged to live ashore" but
then conceded
"....if they could they would be required to live
ashore."
As respondent was one who did have
accommodation available away from the base this last answer provides clear
confirmation for the
conclusion to be drawn from respondent's evidence.
The factual position, therefore, is that respondent was, in effect, ordered
to reside "ashore". At the very least he was required
to do so.
Turning to the relevant statutory provisions applicable to respondent's
conveyance, s 22(1) of the MV1 Act (since repealed by the
Motor Vehicle
Accidents Act, 84 of 1986) limited the sum recoverable by a passenger in an
insured vehicle to R12 000. However, that
restriction did not apply to certain
passengers who were referred to
9
in an exception to the limitation. The exception read:
"....except where the person concerned was
conveyed .... while proceeding on authorized
leave or returning to his base from such leave
during any period in which he rendered military
service or underwent military training in terms
of the Defence Act, 1957 ....or while dressed in
a uniform of the South African Defence Force
during such period, or under circumstances where
the owner or driver .... believed upon reasonable
grounds that he was a person rendering
such
service or undergoing such
training and dressed
in such a uniform...."
It may be observed in passing
that the corresponding exception contained in s 9(1) of the 1986 Act omits any
reference to authorised
leave in relation to a Defence Force passenger.
The other legislative provisions to be considered are certain of the
regulations governing the grant of leave to members of the Defence
Force. These
regulations are part of General Regulations promulgated in terms of s 87(1) of
the Defence Act and published in Government
Gazette 3315 of 26 November 1971
under Government Notice R 2110.
10
Chapter VI deals with all aspects of leave and is entitled
"Leave of Absence". In Part I "leave" is defined as
meaning leave of
absence and a classification is set out of
various types of leave of absence.
One of these is leave
of absence having specific reference to members of
the
Citizen Force. That subject is dealt with in Part III
which is also
entitled "Leave of Absence"
("Afwesigheidsverlof") and comprises regs 26 to 32.
Among the forms of
leave covered by regs 26 to 31 are, for
instance, compassionate leave and vacation leave. It is
reg 32 which is important here. It is entitled "Absence
from base or quarters" and reads as follows:
"32.(1) Every member serving in terms of Chapter X of the Act, doing continuous
service or a course of instruction or on special
duty, shall whether on duty or
not and subject to the provisions of subparagraph (2) at all times remain within
the confines determined
by the officer commanding concerned for the sub-unit,
unit or training establishment with which he is serving, undergoing training
or
performing special duty.
11
(2) Such member may absent himself from such confines subject
to such restriction as may
be imposed with due regard to the unit's
efficiency and readiness for action by the officer commanding concerned -
(a) where such absence is required in
the execution of any duty;
(b) where he is admitted to any
hospital or detention barracks or
any
other place of detention;
(c) during any period of absence
authorised in terms of regulation 15
of
Chapter XV of these regulations;
,(d) during
leave of absence granted in terms of this Chapter;
(e) for a continuous period of not
more than 48 -hours, if he is
an
officer, warrant officer, staff-
sergeant or sergeant and is not
on
duty, required for duty or required
specifically to remain within
such
confines or if he is below the rank of
sergeant and has been given
the written
permission of the officer commanding
concerned or an officer
acting on his
authority;
(f) when not on duty or
required for
12
duty or specifically detailed to remain
within such confines and he has the written permission of the officer
commanding concerned to live beyond
such confines; or
(g) where he is, for any reason whatsoever, ordered, required or permitted to
absent himself from such confines.
(3) Absence in terms of any provision of subregulation (2) other than
subparagraph (d) thereof shall not be recorded as leave of
absence in terms of
the other provisions of this Chapter.
(4) Any member who is absent in terms of the provisions of this regulation may
be recalled at any time to his unit by the officer
concerned."
Turning to the argument proffered in support of
the
appeal, counsel essentially advanced two contentions.
The first focused on
the word "authorised". In counsel's submission, assuming that respondent had
been on leave, he could not succeed
without having shown that such leave had
been properly authorised. It could only so qualify if it had been given in
proper compliance
with the
13
terms of the regulations. The only regulation pertinent to respondent's
situation, said counsel, was reg 32(2)(f) and that demanded
that the required
permission be in writing. As the evidence showed that no written permission had
ever been given, respondent's absence
from base did not constitute authorised
leave.
The second contention put forward by appellant's counsel was that even if
respondent's absence from base had been properly authorised,
it was not "leave"
within the meaning of s 22(1) of the MVI Act. According to this submission the
legislature could not have intended
the word to cover random ad hoc grants of
permission for brief absences in order, for instance, to visit a nearby shop. At
the same
time, said counsel, he did not seek to espouse the vacation element
inherent in the interpretation of "leave" which was propounded
in van Eyssen's
case, supra. In between, it was submitted, there was an interpretation
14
which drew a distinction between leave and mere absence from base and which,
on the foundation of that distinction, warranted a narrow
meaning being given to
the word "leave", namely, permission to be absent from duty.
In support of this interpretation appellant's counsel said it would be
anomalous, if the Court a quo were right, that a passenger
in the situation of
respondent would be compensated but not a Permanent Force member who might also
be on his daily way to his base
in civilian dress. Furthermore, the other two
categories of passengers covered by the exemption concerned were either Defence
Force
members in uniform or passengers liable to engender the reasonable belief
that they were such members in uniform. That protection
was so extensive that it
would cover a member absent without leave and even someone who was not a member
at all. For that reason,
urged counsel, "leave" should be so interpreted that it
did not include
15
cases of mere absence from base which did not at the same time also involve
absence from duty.
Finally, so it was submitted, it was important that except
for absence in terms of reg 32(2)(d), the other forms of absence in that
subregulation were not to be recorded as leave of absence.
As to counsel's first contention, its success or failure depends entirely on
whether reg 32(2)(f) was the sole provision empowering
authority for
respondent's absences from base. In my view it was undoubtedly not. Although the
wording of para (g) may be wide enough
also to cover the situations referred to
in the preceding paragraphs of this subregulation, thus attracting the argument
that the
words "any reason" should be interpreted to mean "any other reason",
the fact is that the word "other" is not used. Its inclusion
would have entailed
very simple drafting.
16
The other, more important, factor is that respondent and his fellow-trainees
did not ask permission to live at home. Had they done
so there would have been
reason to say that para (f) would have been the applicable provision. What
happened was that they were ordered,
or at least required, to live beyond the
confines of the base. And this order or requirement did not. eventuate merely
because they
were not on duty or not required to remain at the base as envisaged
in para (f). The order or requirement came about because, to
all practical
intents and purposes, there was simply no accommodation for them. This being the
case, the situation fell fairly and
squarely under para (g) and not under
(f).
It follows that respondent's absence was properly authorised in terms of the
regulations and counsel's first contention therefore
fails.
Turning to the second contention, the MVI Act
17
does not define "leave". Therefore the meaning of that
word must be
ascertained by way of the accepted principles
of interpretation. In that regard dictionary definitions
are not helpful in deciding whether it means absence from
duty or absence from one's place of duty. The Shorter
Oxford Dictionary and Collins English Dictionary (1985)
define the word as permission to be absent from a post of
duty but Chambers 20th Century Dictionary (1983) gives
"permitted absence from duty". Even with specific
reference to the military the position is not clear.
The Oxford English Dictionary cites C James, Military
Dictionary, 1802, as defining leave of absence as "a
permission which is granted to officers .... and soldiers
to be absent from camp or quarters for any specific
period" but itself gives the current definition pertaining
to the military context as:
"(e) In military, navy and official use (also sometimes in schools):
18
(a) leave of absence, or simply leave, permission to be absent from a post of
duty (See also sick-leave.) On leave: absent from duty
by permission."
In ordinary parlance, therefore, leave in the circumstances of the present
case could mean absence of either sort. The regulations
illustrate as much.
Absence from duty does not necessarily mean absence from base (see reg 32(1))
and absence from base does not
always involve absence from duty (see reg
32(2)(a)).
What is clear, however, is that in using the words "authorised leave" in s
22(1) of the MVI Act the legislature was only concerned
with a serviceman or
trainee who was absent from his base. The question, then, is whether the
legislature could have had any cogent
reason to confine the Act's protection to
a serviceman or trainee who would, but for such absence, have been on duty at
his base.
The sole submission offered on appellant's behalf in support of an
affirmative answer was that a comparative
19
analysis of the respective situations of the three categories of passenger
referred to in the exception compelled the conclusion that
the first category
had to be narrowly construed.
That submission cannot succeed.
In the first place
the suggested limitation is not justified either by the legislature's express
language or by any implication readily
apparent in it.
Secondly, and more importantly, the argument under discussion overlooks the
history of the exception. When the MVl Act came into operation
s 22 contained no
provision concerning Defence Force passengers. By way of a 1978 amendment the
section offered limited cover. However,
this applied only to Citizen Force and
Commando members and then only during the first period of their national
service. In addition,
the member concerned had to be in possession of a written
authority by his
20
commanding officer.
In 1980 the section was again amended. This time, by
way of an exception to the restricted cover
applicable to other passengers,
unlimited cover was afforded to all Defence Force passengers who were, during
the period of their
service or training, proceeding on authorised leave or
returning to base from such leave.
It was only in 1983 that the exception was
expanded to encompass the Defence Force member in uniform and the passenger who
was reasonably
believed to be a uniformed serviceman or trainee.
In the lights of that legislative development it" is obvious that "authorised
leave" bore the same meaning after the 1983 amendment
as it did before. That
being so, its meaning cannot possibly have been altered by the introduction of
the two further categories
of protected passenger.
21
Moreover, long-established authority referred to by the Court a quo requires
that, with the object of affording the greatest possible
protection to injured
third parties, the provisions of the MV1 Act be given a liberal interpretation.
There appear to me to be simply
no logical grounds for the argument that because
the protection given to Defence Force members in uniform, or supposed Defence
Force
members in uniform, might lead to instances of unwarranted compensation,
therefore "leave" should be so construed that it would exclude
cases perfectly
deserving of compensation. That argument involves a complete non sequitur.
For these reasons there exists no justification, in my view, for giving a
narrow interpretation to the words "authorised leave".
As to the submission that on the Court a quo's interpretation the exception
would operate unfairly in the
22
present type of situation by covering a Citizen Force trainee such as
respondent but not a Permanent Force member who was also proceeding
to work at
his base, the answer is that unlike a Citizen Force member, who is required to
be at base unless given leave of absence,
a Permanent Force member (to whom no
regulation such as reg 32(1) applies) who lives at home and works each day at a
base would not
be returning from authorised leave.
As regards the reliance by
appellant's counsel on reg 32(3), this, in my view, does not say that any of the
absences referred to in
subreg 32(2) do not constitute leave of absence. It
merely says that, excluding the absence referred to in subpara (d), they are
not
to be recorded as leave of absence in terms of the other provisions of Chapter
VI. The purpose of subreg 32(3), therefore, is
merely to ensure that any period
of absence under subreg 32 does not diminish a member's entitlement
23
to, say, vacation leave or sick-leave.
Concerning the example given by
counsel of cases of random ad hoc permission, it is possible that consent could
indeed be given for
an absence of such short duration or for a purpose so
trivial that it might not rank as leave within the meaning of the regulations.
For obvious reasons the present is not such an instance.
Finally, it is true that the regulations recognise a distinction between
absence from duty and absence from base but a study of the
regulations makes it
abundantly plain that both forms of absence, when authorised, constitute leave
of absence. There is no reason
to think that the legislature, when introducing
the term "authorised leave" into the MVl Act in 1980 and retaining it in 1983,
was
ignorant of the leave regulations under the Defence Act as promulgated in
1971. It follows that it must be taken to have intended
"leave" to apply to
24
a serviceman or trainee whether or not, but for such leave, he would have
been obliged to be on duty at his base.
The second contention can therefore also not succeed.
In my view the Court a quo was clearly right.
The
appeal is dismissed, with costs. Such costs will include the costs of two
counsel.
C T HOWIE, AJA
HOEXTER, JA )
VAN DEN HEEVER, JA )