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[2001] ZASCA 112
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Road Accident Fund v Samela (151/2000) [2001] ZASCA 112; [2002] 2 All SA 158 (A); 2002 (1) SA 578 (SCA) (28 September 2001)
IN THE SUPREME COURT OF APPEAL
IN
SOUTH AFRICA
REPORTABLE
CASE NO: 151/2000
In
the matter between:
ROAD
ACCIDENT FUND
Appellant
and
ALFRED
SAMELA
Respondent
_____________________________________________________________
CORAM:
VIVIER
ADCJ, MARAIS, OLIVIER JJA, CLOETE
and
BRAND AJJA
_____________________________________________________________
Date
of hearing:
4 September 2001
Delivered:
28
September 2001
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
BRAND
AJA
[1]
I
have read the judgment of Cloete AJA. I find myself unable to agree
with his conclusion that the respondent was not a passenger
"for
reward" within the meaning of article 46 (a)(i) of the Schedule
to Act 93 of 1989 (the Schedule"). For the
following reasons I
believe that the respondent did in fact qualify as a passenger for
reward.
[2]
As
appears from the agreed facts set out in the judgment of Cloete AJA
respondent was a fare-paying passenger and the owner of
the vehicle
was the holder of a permit to engage in road transportation. As a
fact respondent therefore did pay a reward for
his conveyance. It
is contended, however, that this reward is to be disregarded for
purposes of Article 46 (a)(i) of the Schedule
because "it
rendered the conveyance illegal in terms of the law relating to the
control of road transportation services"
as contemplated by the
definition of "reward" in article 1 of the Schedule. The
basis for this contention is that the
conveyance of the respondent
was in contravention of s 31(1)(b) of the Road Transportation Act 74
of 1977 ("the Act").
[3]
On
the agreed facts the respondent and his fellow passengers were indeed
conveyed in contravention of s 31(1)(b) of the Act in
that the owner
of the minibus conducted road transportation outside the area
prescribed in his permit. Putting aside the potential
applicability
of paragraph (b) of the definition of "road transportration"
in the Act and confining my consideration
to paragraph (a), it is so
that, but for the reward paid by the passengers their conveyance
would not have qualified as "road
transportation" as
defined in paragraph (a) of the definition in the Act and could
therefore not have constituted a contravention
of either s 31(1)(a)
or s 31(1)(b). But it is equally clear that payment of a reward
alone without an intended or actual transgression
of the terms of the
permit would not have “rendered the conveyance illegal”.
[4]
What
this shows is that while the payment of a reward is critical to the
existence of "road transportation" as defined
in paragraph
(a) of the definition in the Act and is therefore a necessary
condition which must be satisfied before there can be
a contravention
of either s 31(1)(a) or s 31(1)(b), in the case of s 31(1)(a) it is
also a sufficient condition to render the conveyance
illegal, whereas
in the case of s 31(1)(b) it is not. Under s 31(1)(b) something
more is required to render the conveyance illegal.
That something
is the happening of the particular mischief which constitutes the
true gravamen of the offence created by the
legislature, namely,
transgression of the terms of the permit. That being so, it seems
to me to be inaccurate to say that the
payment of the reward rendered
the conveyance illegal when it seems obvious that its causative role
in bringing about that result
in the case of a permit holder was
neutral and that the real and effective cause was the transgression
of the terms of the permit.
I say "neutral" because the
mere payment of the reward no more rendered the conveyance illegal
than the mere boarding
of the vehicle by the passenger did. I say
"real and effective cause" because transgression of the
terms of the permit
is so plainly the particular and specific conduct
which the legislature has criminalised by making it an offence and
thereby
rendering such
a conveyance illegal. In short, in a case falling under s 31(1)(a)
the payment of a reward is manifestly the
causa causans
of the rendering illegal of the
conveyance. In a case such as this which falls under s 31(1)(b), it
is at best a
causa sine qua non
but not the
causa causans
of the rendering illegal of the conveyance. To that distinction I
shall return.
[5]
It
seems worth mentioning that the Act creates a number of offences
which permit holders may commit some of which might be said
to render
the conveyance of the passengers who happen to be conveyed illegal
and some of which might not. Conveying passengers
in an overloaded
vehicle may be an example of the former; charging a fare in excess
of a prescribed tariff may be an example of
the latter. But in
neither case will it be the payment of a reward
per
se
which renders the
conveyance
illegal. What is noteworthy is that the
legislature has not in the Schedule said that the conveyance of a
passenger which is rendered
illegal by
any
provision of the Act shall not entitle that passenger to the
compensation provided for in article 46(a). Instead it has
deliberately
enacted a far narrower exclusionary provision; it is
only where the payment of a reward (and not some other factor)
renders the
conveyance illegal that a passenger is unable to rely
upon the payment of a reward as the basis for a claim in terms of
article
46(a). However, as Cloete AJA has said,
non
constat
that even in such a case such a
passenger may not base the claim on some other provision of article
46(a).
[6]
Since
the owner of the minibus was the holder of a permit he was entitled
to convey passengers for reward within the area prescribed
by his
permit. But this very same activity (conveyance of passengers for
reward), became unlawful under s 31(1)(b) when it was
conducted
outside the area of his permit. What was it then that "rendered"
his conveyance of these passengers unlawful?
Giving the word
“render” its ordinary meaning, I think that the answer
has to be non-compliance with the permit and
not the payment of a
reward. This situation is to be contrasted with that in which the
owner of a vehicle conveys passengers
without any permit at all. He
may do so legally as long as there is no reward involved. It is
when he accepts a reward for
the conveyance that the conveyance
becomes illegal under s 31(1)(a) of the Act. In that event it can,
in my view, rightly be
said that it is the reward which renders the
conveyance illegal within the meaning of the definition of "reward".
[7]
As
I have indicated, I believe the difference between the situations
contemplated by s 31(1)(a) and s 31(1)(b), respectively, is
this: in
the s 31(1)(a) situation the reward can rightly be described as the
"effective cause" or the "operative
cause" or the
causa causans
of the
illegality whereas in the s 31(1)(b) situation it is merely a
condition precedent together with other equally relevant conditions
precedent for the illegality of the conveyance. I am mindful of the
reasoning by Cloete AJA in para 20 of his judgment that this
distinction between s 31(1)(a) and s 31(1)(b) amounts to a
distinction without a difference in that in both subsections,
acceptance
of a reward is only one of the elements which comprise the
offences thereby created. In s 31(1)(a), so his reasoning goes, the
other element is the absence of a permit while in s 31(1)(b) it is
the contravention
inter alia
,
of the provisions of the permit. I do, however, find myself in
respectful disagreement with this reasoning. The offence under
s
31(1)(a) is not "conveyance for reward without a permit".
It is "conveyance for reward". Absence of a
permit is
thus not an element of the offence. Possession of a permit is a
defence. This appears from the way the offence is
formulated in the
section, namely, road transportation
except
under the authority of a permit. (See
S v
Everson
1980 (2) SA 913
(NC) at 917 H –
918 C.) According to the formulation of the offence under s
31(1)(b), on the other hand, it is constituted
by conveyance for
reward
otherwise
than
in accordance with the provisions of the permit or the provisions of
s 24. In the latter case the elements following the
word
"otherwise" are constituent elements of the offence. They
are not exceptions within the meaning of
s 90
of the
Criminal
Procedure Act 51 of 1977
.
[8]
The
conclusion, with reference to offences under
s 31(1)(b)
, that it is
the reward paid by the passenger which renders the permit holder's
conduct unlawful and the conveyance illegal involves
ascribing a
strained meaning to the term "render" and gives rise to
untenable results. This can be illustrated by the
following
example. The permit holder commits an offence under
s 31(1)(b)
if
he contravenes the provisions of
s 24.
In terms of
s 24(1)(a)
the
permit must at all times be carried on the vehicle to which it
pertains. To conclude that the conveyance of the passengers
while
his permit is at his home and not in his vehicle is "rendered
illegal"
by the reward paid
by his passengers and that his passengers will thus not be covered
under article 46(a)(i) is, in my view, untenable. I have considered
the answer to this problem suggested by Cloete AJA in para 21 of his
judgment. I do not think, with respect, that it is a valid
answer.
Non-compliance with s 24(1)(a) of the Act constitutes an offence
under s 31(1)(b). If the contravention of s 31(1)(b)
excludes the
passenger from the protection of article 46(a)(i), as Cloete AJA
holds, it follows that the passenger will not be
covered by article
46(a)(i) if the permit is not on the vehicle.
[9]
There are two further considerations why I prefer the
interpretation of the definition of "reward" that I propose
in the present context. First, if the legislature had intended to
go further and to exclude any reward paid
"in
connection with an illegal conveyance"
(cf
Nhlangwini and Another v National
Employers General Insurance Co Ltd and Another
1989 (1) SA 96
(W) 98 G) irrespective of whether it was indeed the
payment of the reward which rendered the conveyance illegal, it would
have
said so. Secondly, the historical background to the definition
of "reward" appears to support the construction that
the
exclusion is aimed at a reward paid to the owner without a permit, i
e the offence under s 31(1)(a). A similarly worded definition
of
"reward" was introduced for the first time by s 1(e) of the
Motor Vehicle Amendment Act 60 of 1964 as an amendment
to Act 29 of
1942. It appears that it was the decision of this Court in
Ndhlovu
v Mathega
1960 (2) SA 618
(A) regarding the
meaning of "reward" in Act 29 of 1942 that gave rise to the
amendment. It is not insignificant in
my view that the
Ndhlovu
case itself, as well as the conflicting decisions considered therein,
related to rewards paid to persons who were not permit holders.
(See also Arthur Chaskalson "
Conveyance
for Reward Contrary to the Provisions of the Motor Carrier
Transportation Act"
(1960) 77 SALJ 284
and
Santam Insurance v Tshiva
1979 (3) SA 73
(A) 80 E-H).
[10]
Finally,
even if I am wrong in thinking that the construction of the
definition of "reward" that I favour is the only
possible
construction, the definition is at least reasonably capable of being
so construed. Since this is the construction that
gives the
greatest protection to third parties it is to be accepted in
preference to the interpretation proposed by Cloete AJA
which would
deny such protection (see e g
AA Mutual
Association Ltd v Biddulph and Another
1976
(1) SA 725
(A) 738 H,
Van Blerk v African
Guarantee & Indemnity Co Ltd
1964 (1) SA
336
(A) 341 C-H). In my view, the
Nhlangwini's
case, supra, was wrongly decided and the interpretation given to the
definition of reward by Thirion J in
Mutual &
Federal Insurance Co Ltd v Gounder
1995 (1)
SA 486
(D) 491 D – 492 A, was correct.
[11]
In
the result I would uphold the Court
a quo's
finding that in the circumstances of the present case respondent was
a passenger for reward as contemplated by article 46 (a)(i)
of the
Schedule. For the rest, I agree with the judgment of Cloete AJA.
FDJ BRAND
ACTING
JUDGE OF APPEAL
AGREED
:
Vivier
DCJ
Marais
JA
CLOETE
AJA
INTRODUCTION
[1]
On
7 January 1996 the respondent was a passenger in a Toyota minibus
motor vehicle travelling between Warden and Villiers in the
Free
State. The minibus overturned solely in consequence of the
negligence of the driver and the respondent suffered personal
injuries.
[2]
The
respondent (as the plaintiff) instituted an action for compensation
in terms of the provisions of chapter XII of the Schedule
to the
Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 (‘the
Schedule’) and cited as the defendant (who is
the appellant on
appeal) the Road Accident Fund, a body established by the
Road
Accident Fund Act 56 of 1996
.
ISSUES
[3]
The
essential difference between the parties in this Court, as in the
court below, is that the respondent contends that he was
being
conveyed in the minibus for reward as contemplated in paragraph
(a)(i), or in the course of the business of the owner of
the minibus
as contemplated in paragraph (a)(ii), of article 46 of the Schedule;
whereas the appellant contends that the respondent
was being conveyed
in the motor vehicle as contemplated in paragraph (b) of article 46.
[4]
Article
46, to the extent relevant for present purposes, provided (at the
relevant time) that:
‘
The liability of the MMF or its appointed agent,
as the case may be, to compensate a third party for any loss or
damage contemplated
in Chapter XII which is the result of any bodily
injury to or the death of any person who, at the time of the
occurrence which
caused that injury or death, was being conveyed in
or on the motor vehicle concerned, shall, in connection with any one
occurrence,
be limited exclusive of the cost of recovering the said
compensation ...-
(a) to the sum of R25 000 in respect of any bodily
injury or death of any one such person who at the time of the
occurrence which
caused that injury or death was being conveyed in
the motor vehicle in question –
(i) for reward; or
(ii) in the course of the business of the owner of that
motor vehicle; or
(iii) ...
(iv) ...
(b) in the case of a person who was being conveyed in
the motor vehicle concerned under circumstances other than the
circumstances
referred to in paragraph (a), to the sum of R25 000 in
respect of loss of income or of support and the costs of
accommodation in
a hospital or nursing home, treatment, the rendering
of a service and the supplying of goods resulting from bodily injury
to or
the death of one such person, excluding the payment of
compensation in respect of any other loss or damage’.
[5]
On
any basis the respondent’s claim is limited to R25 000-00. But
if the appellant is correct, the respondent’s claim
is further
limited in that the categories under which damages may be claimed are
confined to those mentioned in article 46(b);
whereas if the
respondent is correct, his claim is not so limited and he may claim,
in addition, damages for example for pain and
suffering and loss of
amenities of life.
[6]
It
is common cause that the respondent is entitled to the greater
protection of article 46(a) if he can bring himself within the
provisions of any one of paragraphs (i) to (iv) thereof. Those
provisions are disjunctive. If, therefore, the respondent was
being
conveyed in the course of the business of the owner of the motor
vehicle in which he was a passenger, it matters not whether
he was
also being conveyed for reward and the converse is also the case.
FACTS
[7]
The
merits were separated from the
quantum
.
The matter came before the court below by way of a stated case.
Apart from the facts mentioned in the first paragraph of this
judgment, and compliance with the formalities prescribed by the
Schedule, the parties were agreed on the following:
(i) One Mfenga was the owner of the minibus and the
holder of a valid and current Public Road Carrier Permit issued
pursuant to
the provisions of the Road Transportation Act 74 of 1977
in respect of the minibus. Mfenga was aware of the terms of the
permit
and he conducted road transportation by operating the minibus
for the conveyance of persons or goods on public roads for reward,
or
alternatively in the course of his business.
(ii) At the time of the accident the passengers in the
minibus, including the plaintiff, were being conveyed as fare paying
passengers
(the plaintiff having boarded the minibus in the Transkei
in order to be conveyed to Johannesburg). However, the minibus was
being operated outside the area specified in the permit (a radius of
50 km from the Kokstad taxi rank) in contravention of section
31(1)(b) of the Road Transportation Act. The passengers, including
the plaintiff, were unaware of the terms of the permit and
the
contravention.
[8]
The
court below found that the respondent was being conveyed ‘for
reward’ as contemplated in article 46(a)(i) and gave
the
following order:
‘
1. It is declared that the plaintiff was being
conveyed in the insured vehicle in terms of Article 46(a) of the
Schedule to the
Multilateral Motor Vehicle Accidents Fund Act, 93 of
1989.
2. The defendant is ordered to pay the costs occasioned
by the determination set out in paragraph 1 above, which costs shall
include
the costs of the hearing on 24 February 2000’.
The
respondent appeals with the leave of the court below.
BUSINESS
[9]
I
shall first consider whether the respondent was being conveyed ‘in
the course of the business of the owner’.
[10]
Article
1(ii) of the Schedule provides that ‘’business’
does not include any unlawful business’. The journey
–
the particular conveyance – of the respondent, was illegal.
But it does not follow that the business of the owner
was unlawful.
The definitions of ‘ reward’ (quoted below) and
‘business’ in the Schedule distinguish between
an illegal
conveyance and conveyance in the course of an unlawful business.
There is a difference between being conveyed legally/illegally
(in
which case one looks to the conveyance) and being conveyed in the
course of a lawful/unlawful business (in which case one looks
to the
business). The distinction was drawn by this Court in
Santam
Insurance Co Ltd v Tshiva; Maxanti v Protea Insurance Co Ltd,
1979(3)
SA 73(A)
at 82C-F
where Kotzé JA, writing for the majority of the Court, said:
‘
I conclude therefore that the reference in s 23
(b) (ii) of the Act to conveyance "in the course of the business
of the driver
or owner" is not restricted to conveyance which is
not illegal in terms of any provision of Act 39 of 1930 (now repealed
and
re-enacted by the Road Transportation Act 74 of 1977). The
illegality of conveyance under the road transportation legislation
should
not without the clearest indication be imported into the Act
(which after all reflects an intention to provide comprehensive
protection
in respect of damages sustained as a result of motor
vehicle accidents) to nullify a claim against a registered insurer.
Accordingly,
on the facts of the present case: Daniso operated a
lawful taxi business. In the course of that business, in addition to
three
duly licensed taxis, he also operated motor vehicle CB 44478 as
a taxi in contravention of the provision of Act 39 of 1930. On 6
October 1972 his servant Dindala conveyed the husbands of the
respondents, who were innocently unaware of the illegality pertaining
to the vehicle in question, in the course of his taxi business. They
met their death in the course of such conveyance which, constituting
(as I have held) conveyance in the course of Daniso's business within
the meaning of s 23 (b) of the Act, renders Santam liable
to the
respondents in the agreed sums of damages caused by the admitted
negligence of Dindala.’
The
distinction apparent from the extract of the judgment just quoted was
spelled out by Wessels JA (who was a party to that judgment)
in
Southern Insurance Association Ltd v Khumalo
and Another
1981(3) SA 1(A) at 10D and 10F
as follows:
‘
In
Tshiva’s
case the Court held that
the conveyance was undertaken in the course of the owner’s
lawful business as a taxi operator, notwithstanding
the fact that the
conveyance in the unlicensed vehicle rendered the conveyance illegal
in terms of the provisions of Act 39 of
1930 ... In
Tshiva’s
case, the passengers were being conveyed in the furtherance of a
taxi operator’s lawful business, notwithstanding that the
conveyance as such was tainted with illegality’.
[11]
The
definition of business so as to exclude any unlawful business was
introduced after the decision in the
Tshiva
and
Maxanti
case (by section 1(a) of Act 23 of 1980, with effect from 11 April
1980). But it does not follow, as Klopper suggests in
‘The
Law of Third Party Compensation’
(2000)
239, that the definition was introduced in response to that decision
and to reverse its effect. In the first place, the
definition means
that not only business which is unlawful under the law governing road
transportation services, is excluded –
all unlawful business is
excluded (ie the definition goes further than would be necessary to
deal with the effect of the
Tshiva
and
Maxanti
decision).
The definition could therefore have been introduced to cover all
unlawful businesses. In the second place, if the definition
was
intended to eliminate the distinction drawn by this Court in the
Tshiva
and
Maxanti
case, it has singularly failed in its
purpose: a provision that the business of the owner of the vehicle
must be lawful, does not
exclude the occasional illegal conveyance in
the course of a predominantly lawful business.
[12]
If
the legislature intended, as the appellant contends and Klopper
suggests (
op. cit.
240),
that a single illegal conveyance should be excluded, the words
‘legally and’ (which would qualify the conveyance)
could
have been used to introduce paragraph (ii) of Article 46(a). The
combined effect of such a provision and the definition
of ‘business’
which currently appears in the Schedule would be to require both the
conveyance of the passenger and
the business of the owner of the
vehicle to be lawful.
[13]
This
Court has held that a business can consist in a single act:
AA
Mutual Insurance Association Ltd v Biddulph and Another
1976(1)
SA 725(A) at 739 B-C. But it does not follow that where a business
does not consist in a single act, but comprises numerous
transactions, the one which is unlawful is a business in itself
distinct from the rest of the business
any more than it follows that a business comprising numerous
transactions is unlawful because one transaction is unlawful. I
therefore respectfully disagree with the reasoning of Levy AJ in
Nhlangwini and Another v National Employers
General Insurance Co Ltd and Another
1989(1)
SA 96(W) at 99 B-C.
[14]
There
is no suggestion in the pleadings in the present matter that the
business of the owner of the minibus in which the plaintiff
was being
conveyed, was in fact unlawful. It is clear from the stated facts
that the owner of the minibus held a valid permit
in respect of the
minibus and that he operated the minibus for the conveyance of
persons on public roads in the course of his business
– ie that
he conducted a lawful business. In these circumstances it seems to
me (and it was conceded by the appellant’s
counsel) that it was
not incumbent on the respondent to go further than to show that at
the time of the accident he was being conveyed
in the minibus in the
course of the business of the owner of the vehicle (which is
established by the stated facts).
[15]
I
therefore conclude that the respondent was being conveyed in the
course of the business of the owner of the minibus as contemplated
in
article 46(a)(ii) of the Schedule.
REWARD
[16]
The
learned judge in the court below held, as I have said, that the
respondent was being conveyed ‘for reward’. I
respectfully disagree with that conclusion for the reasons which
follow.
[17]
Article
1(xiv) of the Schedule provides that:
‘’
reward’, with reference to the
conveyance of any person in or upon a motor vehicle, does not include
any reward rendering
such conveyance illegal in terms of any law
relating to the control of road transportation services applicable in
the area of jurisdiction
of a Member’
(ie
a Member of the Multilateral Motor Vehicle Accidents Fund –
originally, in terms of article 4, the Republics of South
Africa,
Transkei, Bophuthatswana, Venda and Ciskei).
[18]
The
‘law’ in question is, for present purposes, the Road
Transportation Act and more particularly section 31(1) which
(to the
extent relevant for present purposes) provides:
‘
Any person who –
(a) undertakes road transportation except under the
authority of a permit authorizing such road transportation; or
(b) being the holder of a permit, undertakes road
transportation otherwise than in accordance with the provisions of
such permit,
or ... contravenes or fails to comply with any condition
or requirement of a permit ...
...
shall be guilty of an offence’.
‘
Road
transportation’ is defined (subject to exceptions not presently
relevant) to include
inter alia:
‘
(a) the conveyance of persons or goods on a
public road by means of a motor vehicle for reward;
(b) the conveyance of persons or goods on a public road
by means of a motor vehicle in the course of any industry or trade or
business’.
Section
31(1) envisages two possibilities: road transportation, in the case
of (a), without a permit; and in the case of (b), with
a permit but
outside the terms of the permit:
S v Smith
1986(3) SA 714(A).
[19]
In
Mutual & Federal Insurance Co Ltd v
Gounder
1995(1) SA 486(D & CLD), in
Ncqulunga and Others v President Insurance Co
Ltd
1995(1) SA 594(N) and in the court below
it was reasoned that for the purposes of article 46(a)(i) there is a
distinction between
paragraphs (a) and (b) of section 31(1) in that
(to quote the court below):
‘
Where section 31(1)(a) is contravened, the
conveyer has no permit. In such a case the mere payment of the
reward probably renders
the conveyance illegal. (I say probably
because that is not what I have to decide.) In the case of a
contravention of section
31(1)(b) the permit holder is entitled to
receive reward for conveyance. It is not the payment of the reward
that makes the conveyance
illegal. It is the fact that he
contravenes the terms of his permit.’
The
fallacy in this reasoning in my respectful view is that in a case of
a contravention of section 31(1)(b) the permit holder is
not
‘entitled to receive reward’ for
that
particular conveyance
which is illegal in
that it is contrary to the terms of the permit and accordingly the
provisions of the Road Transportation Act.
In neither situation –
(a) or (b) of s 31(1) – is the permit holder entitled to a
reward (in the case of (a), at all;
and in the case of (b), for the
particular conveyance) and if a reward is paid, it has the effect of
‘rendering’ the
‘conveyance illegal’ (the
Afrikaans text is: ‘vergoeding wat sodanige vervoer onwettig
maak’).
[20]
Inherent
in both ‘render’ and ‘ maak’ is a causative
element. But payment of a reward does not by itself
make a
conveyance illegal. In both subsections (a) and (b) something more
is required: in the case of (a), conveyance without
a permit; and in
the case of (b), conveyance outside the terms of a permit. I
therefore do not consider that emphasis on the causative
element
inherent in the verbs used in both texts can be a basis for
distinguishing between sections 31(1)(a) and (b) of the Road
Transportation Act for the purposes of the definition of ‘reward’
in the Schedule; and I accordingly disagree, with
respect, with the
reasoning in the
Gounder
case
at 491 F-H.
[21]
What
must be borne in mind in interpreting article 46(a)(i) and the
definition of ‘reward’ is that numerous offences
under
the Road Transportation Act can be committed – eg where the
permit holder does not carry the permit on the motor vehicle
as
required by section 24(1)(a). It is for that reason in my view that
the legislature provided in the Schedule that in order
for the
additional protection under article 46(a)(i) to be excluded, the
reward must have the effect of rendering
the
conveyance
of that person to whom the reward
relates, illegal. It is the conveyance of the passenger which must
be illegal (and therefore
the appellant’s counsel was incorrect
in submitting that any contravention of the Road Transportation Act
not incidental
to the conveyance of a particular passenger such as
the failure to carry the permit in the vehicle, takes that passenger
outside
the protection of article 46(a)(i)); it is the reward which
must make it so (which will be the case where either subsection of
section 31(1) is contravened, for in neither case can there be a
contravention if a reward is not paid); and because the phrase
‘such
conveyance’ in the definition of ‘reward’ refers to
the conveyance of the particular person in respect
of whom the reward
is paid, the rights of other passengers are not affected.
[22]
Arguably
this interpretation operates harshly on the respondent, who was
ignorant of both the terms of the permit and the contravention
of the
Road Transportation Act. Before the insertion of the definition of
the term ‘reward’ in section 1 of the Motor
Vehicle
Insurance Act, 29 of 1942, this Court held in
Ndhlovu
v Mathega
1960(2) SA 618(A) that a passenger
who was unaware of the illegality of his conveyance was not barred
from recovering damages for
injuries under that Act. The definition
inserted by s(1)(e) of Act 60 of 1964 provided that ‘reward’
did not include
‘any reward rendering such conveyance illegal
in respect of any provision of the Motor Carrier Transportation Act
39 of 1930.’
This Court then held in
Martin
and Others v Marine & Trade Insurance Co Ltd
1978(3)
SA 640(A) that the effect of the insertion of the definition was
that a passenger for reward who was unaware of the illegality
of his
conveyance was barred from recovering damages for injuries from the
insurer. (See also
Parity Insurance Co Ltd v
Marescia and Others
1965(3)SA 430(A) at 434
A-B
and the
Tshiva
and
Maxanti
case
supra
at 80F.)
The same
reasoning must apply to the Schedule, with the consequence that the
respondent’s ignorance that he was being conveyed
illegally in
the minibus, is irrelevant. It is the objective illegality of the
conveyance and not the passenger’s knowledge
thereof, which
takes the passenger out of the ambit of article 46(a)(i).
[23]
A
passenger will nevertheless always have the protection of article
46(b). But the effect of excluding a passenger from the categories
of damages for which article 46(a) additionally provides when
compared to article 46(b), has the effect that the residual common
law obligation of the owner of the vehicle, the driver and the
latter’s employer – ie those involved in the taxi
business
– is correspondingly increased (in as much as, in
terms of article 52, an injured person is deprived of the right to
claim
compensation only to the extent that such compensation is
payable under the Schedule). Accordingly if a business is lawful in
the sense described above (with the consequence that a passenger
will fall under article 46(a)(ii)) the obligation to compensate
him/her for the additional categories of damages for which article
46(a) provides, is not imposed on those involved in the taxi
business. Because the business is lawful, the passenger’s
claim lies against the Fund even although his conveyance may have
been illegal. Conversely, if a business is unlawful in the sense
described above (with the consequence that a passenger cannot
fall
under article 46(a)(ii)) the obligation to compensate him/her for the
additional categories of damages contained in article
46(a) will only
be transferred to those involved in the taxi business if they further
the unlawful business
vis-a-vis
that
particular passenger by receiving a reward which renders his/her
conveyance illegal (so taking him/her outside the protection
of
article 46(a)(i)). On the interpretation I have given, this
situation occurs where those involved in an unlawful taxi business
contravene either subsection of section 31(1) of the Road
Transportation Act (by operating without a permit under (a), or
outside
the terms of the permit under (b)). That appears to me to
accord with the intention of the legislature. If, however, the
definition
of ‘reward’ is interpreted so as to exclude
the situation contemplated in section 31(1)(b), then the reward paid
in
such a case will always qualify as a ‘reward’ and the
passenger will automatically fall under article 46(a)(i), even
although his conveyance was illegal under the Road Transportation Act
and even where it formed part of a business which was exclusively
unlawful under that Act. I cannot accept that the legislature
intended this result.
[24]
On the
stated facts, the respondent paid a fare to be transported outside
the area of the permit held by Mfenga. The consequence
in my view is
that the reward he gave rendered his conveyance illegal in terms of
section 31(1)(b) of the Road Transportation Act
and such reward is
accordingly not a ‘reward’ as defined for the purposes of
article 46(a)(i) of the Schedule.
CONCLUSION
[25]
I
therefore conclude that the respondent was not being conveyed for
reward, but was being conveyed in the course of the business
of the
owner of the minibus; and that for this latter reason, the respondent
falls under article 46(a) of the Schedule. Although
the reasoning of
the court below was in my respectful view incorrect the order given
requires no alteration. The appeal is accordingly
dismissed with
costs.
......................
TD
CLOETE
ACTING
JUDGE OF APPEAL
CONCUR
OLIVIER
JA