THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number : 19/03
In the matter between :
JONGISILE FONJANA APPELLANT
and
MULTILATERAL MOTOR VEHICLE
ACCIDENT FUND FIRST RESPONDENT
ROAD ACCIDENT FUND SECOND RESPONDENT
CORAM : MPATI DP, MARAIS, BRAND JJA, JONES and
PONNAN AJJA
HEARD : 18 MAY 2004
DELIVERED : 28 MAY 2004
Summary: Article 46 of Schedule to Ac t 93 of 1989 – meaning of phrase 'rendering
military service' – not confined to active military service or combat service –
connection between conveyance and military service not required by the article.
Order in para 29.
_________________________________
JUDGMENT
_________________________________
BRAND JA/
2
BRAND JA :
[1] This appeal turns on the meani ng of the expression 'military
service' in a 46 of the schedule to t he Motor Vehicle A ccident Fund Act
93 of 1989 ('the 1989 Act' ). It arises from the following facts. On 1
September 1996 the appella nt sustained bodily injuries when the motor
vehicle in which he was a passeng er left the road and overturned. He
instituted action in the Ciskei High Court for damages resulting from his
injuries. The action was brought ag ainst the Multilateral Motor Vehicle
Accident Fund as first defendant (now first res pondent), alternatively
against the Road Accident Fund as second defendant (now second
respondent). The reason why the two respondents were joined in this
manner seems to have its origin in the provisions of the Road Accident
Fund Act 56 of 1996 ('the 1996 Act'). In terms of the latter Act, the 1989
Act was repealed with effect from 1 May 1997. Though s 2 of the 1996
Act created the second respondent and at the same time announced the
demise of the first respondent, s 28(1) provided that, notwithstanding the
abolition of the first respondent, 'this Act shall not apply in relation to a
claim for compensation in respect of which the oc currence concerned
took place prior to the commencemen t of this Act'. This apparently gave
rise to some uncertainty in th e minds of the appellant's legal
representatives as to which of the two defendants should be held liable
3
for the appellant's damages.
[2] Be that as it may, at the comm encement of the proceedings in the
court a quo , the identity of the ri ght defendant no longer mattered
because the second respondent ('respondent') conceded that, in
principle, it was liable for the appel lant's damages. Its contention was,
however, that its liability was limited to an amount of R25 000 in terms of
a 46 of the schedule to t he 1989 Act, by reason of the fact that the
appellant was a passenger in the vehicle concerned. The appellant's
response to this contention was th at, although he wa s a passenger, he
was 'rendering military service' when the accident occurred and therefore
fell within the purview of the except ion to the limitat ion of passengers'
claims provided for in a 46.
[3] Since the other issues relati ng to the quantum of the appellant's
damages would only become relevant if the alleged limitation to the
respondent's liability did not apply, the court a quo acceded to a request
by both parties that the limitation i ssue be determined first. No evidence
was led by either party. Instead, both of them based their opposing
arguments on the facts that were comm on cause. In the end the court a
quo (Ebrahim J) found, in a judg ment which has since been reported
(2004 (2) SA 158 (Ck)), that the appel lant was not 'rendering military
4
service' as contemplated by the exception in a 46 when the accident
occurred. From this finding it foll owed that the appellant's claim was
limited to the sum of R25 000. The appellant's appeal against that
judgment is with the leave of the court a quo.
[4] The wording of the exception to the limitation of a passenger's
claim in a 46 is almost exactly corre spondent to that of its counterpart in
s 18(1) of the 1996 Act. It pertains to a passenger
'who was conveyed in or on a motor vehicl e other than a motor vehicle owned by the
Defence Force … during a per iod in which he rendered military service or underwent
military training in terms of defence legislation applicable …'.
It is not in dispute that the 'defence legislation app licable' is to be found
in the Defence Act 44 of 1957. Like wise it is common cause that the
motor vehicle involved was not ow ned by the Defence Force, now the
South African National Defence Forc e ('SANDF') and that the appellant
was not at the time of the accident undergoing any military training.
[5] The central issue is therefore whether the accident occurred 'during
a period in which the appell ant rendered military serv ice' in terms of the
Defence Act. As I have indicated, no one led any evidence at the trial.
Both parties relied on the agreed fact s. Unfortunately the agreed facts
turned out to be somewhat meagre an d not entirely clear. What was
5
eventually admitted on behalf of the res pondent in this court was that, at
the time of the accident, the appella nt was a permanent member of the
SANDF. It also appears to be common cause that, at that time, he was
stationed in East London; that on the afternoon of Friday 30 August 1996
he came off duty and that he was on ly to resume his duties at 07:30 on
Monday 2 September 1996. In all the circumstances the most likely
inference appears to be that he wa s on his way back to his base when
the accident occurred at about 22 :00 on the Sunday. However, counsel
for the respondent, in this court, strenuously disavowed any admission to
that effect. Indeed, his argument was that it would make a vital difference
to the outcome of the appeal if it had been established that the appellant
was in fact returning to his base when the accident occurred. I do not
agree with this argument. For reaso ns that will presently become
apparent, I do not believe that the purpose of the appellant's journey
would be of any consequence. Accordi ngly, I will consider the matter on
the basis that we do no t know where the appellant was going when the
accident occurred.
[6] The appellant's case is, essentia lly, that his membership of the
SANDF, in itself, was sufficient to constitute the ' rendering of military
service' in terms of the Defence Act, as contemplated by the exception in
6
a 46. The respondent denies that this is so.
[7] The term 'military service' is not defined in either the 1989 Act or in
the Defence Act. The court a quo therefore sought assistance in other
provisions of the Defence Act. It fo und such assistance in the definition
section of the Defence Act. More partic ularly, in the definition of the
phrase 'service in defence of the Republic' which reads as follows:
'"service in defence of the Republic" means military service and "operations in
defence of the Republic" means military operations –
(a) in time of war; or
(b) in connection with the discharge of the ob ligations of the Republic arising from
any agreement between the Republic and any other state; or
(c) for the prevention or suppression of any armed conflic t outside the Republic
which, in the opinion of the State President, is or may be a threat to the security of
the Republic;'
Broadly stated, it is clear from the definition that, in the context of the
phrase 'service in defence of the Republic', the t erm 'military service' is
confined to active military service or combat service.
[8] Based on this definition the court a quo's reasoning went as follows
(in para 23 at 164G-H):
'…The definition provided in the Defence Act for the phrase "service in the defence
of the Republic" points to military service being service of a limited duration which is
7
rendered in extraordinary and specially defined circumstances.'
And (in paras 24 and 25 at 164J-165C):
'It is evident that the Legisl ature must have been cognisant of the provisions of the
Defence Act since it prescri bed that the military service or the military training had to
be in terms of the aforesaid Act. … If the purpose was to make the exception [in a 46]
available to every member of the Defence Force irrespective of the type of service
such person was rendering it would have been a simple matter for the legislature to
have said so. Instead, the legislature has used the s pecific wording that the
exception would be applicable "during a period in which the person rendered military
service or underwent military training". In my view, the use of such specific
phraseology indicates that the Legislatur e intended that it was not the person's
membership of the Defence Force that was the determining factor, but rather whether
the person was rendering militar y service or undergoing milit ary training at the time.
In the circumstances I am of the opinion that the interpretation which is to be given to
the phrase "military service" in [a 46] … is t hat it refers to service which a member of
the Defence Force renders in the specific circumstances described in the definition of
the phrase "service in the defence of the Republic".'
[9] Membership of the SANDF in itse lf, the court concluded, does not
satisfy the requirement of 'rendering m ilitary service'. Since the appellant
was not performing active military serv ice at the time of the accident, the
court held that he was not exempted from the limitation imposed on
claims by passengers in a 46.
8
[10] Shortly prior to the judgment of the court a quo in this matter and
obviously unbeknown to the court at the time, the Durban High Court
(McClaren J) came to exactl y the opposite conclusion in Du Preez v
Road Accident F und and another 2002 (4) SA 209 (D). Though the
exception to the limitation of a passenger's claim considered in Du Preez
was the one contained in s 18(1) of the 1996 Act, its wording is, for
present purposes, the same as in a 46. Moreover, the matter was
decided on substantially similar fa cts. Du Preez also sued for damages
arising from injuries that he suffer ed as a passenger in the motor vehicle
concerned. Like the app ellant, he also contended that he was 'rendering
military service at the time of the accident' solely by virtue of the fact that
he was a permanent member of the SANDF. Unlike the court a quo,
however, McClaren J came to th e conclusion that, on a proper
construction of the exception, p ermanent membership of the SANDF in
itself was sufficient to satisfy the prerequisite of military service.
[11] I return to the court a quo's reasoning that underlies its
interpretation of the term 'military service'. I agree with the point of
departure, that since a 46 spec ifically refers to 'military service' in terms
of the Defence Act, the meaning of t he phrase is first to be sought with
reference to that Act. From there onw ards, I find myself unable to agree
9
with the court's reasoning. More part icularly, I cannot agree with the
conclusion that the restrictive interpre tation of the term 'military service'
in a 46, to connote active or co mbat service, is supported by the
definition of 'service in defence of the Republic' in the Defence Act. On
the contrary, as I see it, that defin ition is an indica tion in the opposite
direction. I say this for two reasons. First, if the legi slature intended to
limit the exception in a 46 to military personnel performing combat
service, the obvious way of doing so would have been to refer to those
rendering 'service in defence of the Republic' and not to 'military service'
as such. Second, the mere fact that it was found necessary to
circumscribe the term 'military servic e' for the purposes of the definition,
is an indication that 'military serv ice' on its own has a wider, more
general meaning.
[12] The next question is whether th ere are any other indications in the
Defence Act that the rendering of 'milit ary service' in te rms of that Act,
which is contemplated by a 46, sh ould be restricted to 'active military
service'. In the definition section of the Act, the term 'military service' is
not defined. There is, however, a defini tion of 'military'. According to this
definition the term 'milit ary' refers to the four b ranches of the SANDF, ie,
the army, the air force, the navy and the medical service. The indication
10
is therefore that the te rm 'military' in itself has nothing to do with combat
or war. In the rest of the Defence Act, the term 'military service' is used
on very few occasions (s ee eg ss 71 and 146). Again it is apparent,
however, that on these occasions 'military service' is not intended to refer
to combat service. Unlike 'military serv ice', the term 'serv ice' is used on
numerous occasions throughout the Act. So, for example, there is
reference to 'service in the Permanent Force' (ss 9(4) and 15); 'service in
the Citizen Force' (s 22) and 's ervice in the Commandos' (s 44). With
regard to the meaning of 's ervice' in the Act, I find myself in agreement
with the views expressed by McLaren J in the Du Preez case, first, that
the 'service' provided for in the Defence Act can only be understood as
'military service' (221 A) and, sec ond, that, so understood, 'military
service' does not refer to active service at al l (221A-227A). 'Service in
the Permanent Force', in particul ar, patently means no more than
permanent employment by the SANDF.
[13] In this light I hold the view that , when the term 'military service' in a
46 is interpreted with reference to the provisions of the Defence Act,
there is no justification for restricti ng the ambit of the exception in the
manner suggested by the court a quo. Moreover, no other reason has
been suggested why the phrase 'renderi ng military service' in the
11
exception should not be understood in its ordinary sense. So understood,
the stated requirement would, in my view, be satisfied if, at the time of
the accident, the passenger concerned was in the 'service of the military'.
Or, as explained by H B Klopper, Law of Third Party Compensation, 225,
the exception applies if, at the relevant time, the passenger was under
the control and discipline of the military authorities.
[14] The conclusion that I have arrived at regardi ng the meaning of
'military service' in a 46 is, in my view, supported by the legislative
history of the exception. A recordal of this history is to be found in
previous judgments (see eg Santam Insurance Ltd v Taylor 1985 (1) SA
514 (A) 527C-530B; Du Preez v Road Accident Fund and another supra
214I-219B). Repetition will serve little purpose. Suffice it to say, in my
view, that, although the phrase 'ren dering military service' has been
consistently employed in almost a ll the predecessors of a 46, it was
never limited to 'active service'.
[15] On the contrary, at one sta ge of its development, the exception
required that the passenger 'was conveyed whilst proceeding on
authorised leave or returning to his base from such leave during the
period in which he renders military service' (see s 22 of Act 56 of 1972 as
amended by s 2(a) of Act 23 of 1980 and by s 1 of Act 4 of 1983).
12
Consequently, if the soldier was on duty, let alone performing combat
service, he did not qualify for the be nefits of the except ion. Although the
requirement relating to authorised l eave has been omitted from the
exception since 1986 (see s 9(1) of Act 84 of 1986), it goes without
saying that such abolition was not intended to exclude those on vacation
from the ambit of the exemption, but to extend its benefits also to those
who are not on vacation.
[16] For these reasons I agree with the conclusion arrived at by
McClaren J in the Du Preez case (226A-227B) that, having regard to the
provisions of the Defence Act as well as the legislative history of the
exception, the phrase 'rendering m ilitary service' in a 46 must be
understood in accordance with its ordinary meaning. Accordingly, no
reason has been suggested – and I c an think of none – why permanent
membership of the SANDF in itself should not be regarded as sufficient
to constitute the rendering of 'milit ary service', as was contended for by
the appellant.
[17] During oral argument in this co urt, counsel for the respondent, for
the first time, raised an alternative argument in answer to the appellant's
case. This answer was based on t hree propositions. First, if the term
'military service' is not limited to 'active service', the ambit of the
13
exception must be restricted in another way for the reason that any
construction of the exception which would extend its protection to all
permanent members of the SANDF without limitation, will lead to unfair
discrimination against other passe ngers. This proposition was illustrated
by reference to the example of the permanent force member who is
stationed in Pretoria. While on holi day in Cape Town, he is a passenger
in a vehicle driven by hi s friend on a journey th at has no connection with
his military service. Why, so th e question was posed, should this
passenger be in a more favourabl e position than his fellow passenger
who works for, say, the Department of Justice?
[18] Such discrimination, so it wa s contended, would be arbitrary and
irrational and conseque ntly unfair (see eg Hoffmann v South African
Airways 2001 (1) SA (1) (CC) para 24 at 15D -F). This contention forms
the basis of the sec ond proposition by couns el for the respondent,
namely, that since unfair discrimi nation is proscribed by s 9 of the
Constitution (Act 108 of 1996) the court is enjoined by s 39(3) of the
Constitution, to avoid such unfai r discrimination by construing the
exemption in favour of military pe rsonnel contained in a 46 in a more
limited way.
[19] Counsel's third proposition was t hat the required limitation to the
14
exemption can be brought about by in troduction of the prerequisite, that
there must be some link between t he conveyance of the passenger and
his rendering of military service. Th is link, so it was suggested by
counsel, must be 'something akin' to the requirement encountered in the
sphere of vicarious liabilit y, namely, that the s ervant must have acted in
the course and scope of his empl oyment. The proposed limitation is
therefore, if I understood th e argument correctly, that the ambit of the
exemption will not extend to all passengers who are rendering military
service, but only to those who we re conveyed in circumstances that
could be described as 'something ak in to the course and scope of their
military service'. As to when this requirement would be satisfied, counsel
suggested the example of the soldie r returning to his base in order to
resume his military service, when the accident occurred.
[20] I find this line of argument unpersuasive in all three of its
constituent parts. The 'irrational discrimination against other passengers'
contended for is founded on the premis e that the exception in favour of
those rendering military service is excl usively aimed at the protection of
the favoured passengers themselves. This premis e is not a valid one.
The purpose of the exception is not only to protect the passengers
themselves; it is also aimed at protecting motorists who are encouraged
15
to give lifts to soldiers (see eg Bray v Protea Insurance Co Ltd v Road
Accident Fund 1990 (1) SA 776 (T) 790F-H; Du Preez v Road Accident
Fund supra 216D-F; Klopper op cit 225 n 38). Herein lies the answer to
the question posed by the respondent's counsel as to what the difference
is between a passenger who is a soldie r and one who, say, works for the
Department of Justice. Soldiers a re often away from their homes and
families and they are often dependent on the goodwill of motorists to
provide them with transport.
[21] Whenever the claim of a pas senger against the respondent is
limited in terms of a 46, the motori st is liable in common law for the
balance of the passenger's claim. Without an exemption from such
limitation, motorists who give lifts to soldiers woul d therefore expose
themselves to the risk of finan cial ruin through no more serious a
wrongdoing than momentarily losing c oncentration behind the steering-
wheel. An important reason for the e xception, if not the dominant one, is
therefore to allay the motorist's fear of such exposure. In the
circumstances, it could operate very unfairly against the motorist if, apart
from the obvious prerequisite that t he passenger must be a soldier, the
operation of the exemption is made subject to additional requirements.
More often than not the motorist w ould have no way of knowing whether
16
the additional requirements had been complied with. This is a lesson
learnt through legislative experience. As I have already indicated, the
requirement was introduced in 198 0 that, apart f rom rendering military
service, the passenger had to be 'conveyed whilst proceeding on
authorised leave or returni ng to his base from such leave' when the
accident occurred. (See the amendm ent to s 22 of Act 56 of 1972
introduced by s 2(a) of Act 23 of 1980). It is not difficult to conceive how
these additional requirements could cause serious hardship to the
unwary motorist. How was he to know that his soldier/passenger was
actually absent without leave? Or that the corporal who signed his
soldier/passenger's weekend pass wa s not authorised to do so? (Cf Van
Eyssen v Protea Versekeringsmaatskappy Bpk 1992 (1) SA 610 (C) and
Bray v Protea Assurance Co Ltd, supra ). What makes it worse, is that
the unwary motorist would have been lu lled into a sense of false security
by the very existence of the except ion itself. Knowledge of the exception
would have led him to believe that he would be exempted from liability to
a passenger who was a soldier, wh ile, because of facts unbeknown to
him, he was not.
[22] It is therefore not s urprising that in 1983 the formulation of the
requirement regarding authoris ed leave was drastically changed.
17
Subsequent to the 1983 am endment (introduced by s 1 of Act 4 of 1983)
the exemption pertained to a passenger who:
'was conveyed in … the motor vehicle in question while pr oceeding on authorised
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 …
or while dressed in a uniform of the South African Defence Force during such period,
or under circumstances where the owner or driver of the motor vehicle believed upon
reasonable grounds that he was a person rendering such service or undergoing
training and dressed in such uniform.'
[23] It is fairly obvious that the 1983 amendment was not aimed at
affording additional protection to pas sengers. After all, why would the
legislature deem it necessary to extend the protection to soldiers who
were 'awol' and even to impostors who pretended to be soldiers? The
only reasonable inference is th at the amendment was aimed at
extending the protection to mo torists who have been taken in by
appearances. But history repeated itse lf with regard to the requirement
that the soldier/passenger had to be dressed in the uniform of the
SANDF. In Bray v Protea Assurance Co Ltd, supra, for example, the
question was whether a passenger wh o was dressed in a tracksuit
issued by the SANDF and with his army beret in his possession, could
be said to have complied with the uniform requirement. The court found
18
that he did not, inter alia, on the basis that his outfit did not constitute a
'uniform' as envisaged by the dre ss code of the SANDF. This again
obviously raised the question: how was the motorist to know that?
Although the requirement pertaini ng to uniform was repeated in
subsequent legislation (see s 9(1) of Act 84 of 1986 and a 46 of the
schedule to the 1989 Act in its origi nal form), it was eventually deleted
(from a 46 by s 6 of Proclamati on 102 of 1991) with effect from 1
November 1991. Again the reason for the abolition of the requirement, I
venture to suggest, was not to save the passenger the trouble of putting
on a uniform when seeking a lift. It was to protect the unsuspecting
motorist. In the end, the inference seems to be justified that the
Legislature decided, as a matter of po licy, that the only practicable way
of protecting motorists was to restri ct the requirements for the operation
of the exemption to a single one, namely, that the passenger must be a
soldier.
[24] Of course, the effect of drawing the line in this manner gives rise to
differentiation between passengers which is sometimes difficult to justify.
But that was obviously outweighed by the need to encourage motorists
to assist soldiers and to provide moto rists with effective protection from
liability when they did so even if th at meant that a passenger who might
19
not be deserving of it may occasionally not be subjected to the limitation
of R25 000. Thus understoo d, the criticism of irrationality is, in my view,
by no means justified.
[25] The second proposition advanc ed by counsel for the respondent,
namely, that the unfair discrimina tion contended for should be removed
by construing the exception restric tively, is in my view equally
unsustainable. It hardly lies in the mouth of the res pondent to contend
that it should pay the appellant le ss than he would otherwise be entitled
to in order to avoid discrimination against other passengers. The obvious
way to remove the perceived unfair discrimination would not be to take
away rights from those who qualify, but to extend the same rights against
the respondent to those discriminated against. (Cf President of the
Republic of South Africa and another v Hugo 1997 (4) SA 1 (CC) para 47
at 26A-E; Schachter v Canada 10 C.R.R. (2d) 1; [1992] 2 S.C.R. 679;
Hogg, Constitutional Law of Canada, 4th ed (loose leaf) 37-7.)
[26] The third proposition by the respondent's counsel, that the
exception is capable of the restr icted construction for which he
contended, is, in my view, also un tenable. The suggested gateway for
introducing such restriction into a 46, lies in the term 'rendering'.
According to this argum ent, the requirement that the soldier must be
20
rendering military service at the time of the accident is an indication that
there has to be some link between his conveyance as a passenger and
his military service. Howev er, the requirement is not ' while he was
rendering military service' but 'during a period in which he rendered
military service'. The required lin k is therefore not between the
'conveyance' and the 'military service', but between the 'conveyance' and
a particular 'period'.
[27] In any event, it hardly needs any motivation that the criterion for the
existence of the requir ed link suggested by counsel, namely 'something
akin to course and scope of the military service' is so vague that it cannot
be sensibly applied in the real world. Lastly, it is not without significance
that the example suggested by respondent's counsel of a situation where
the required link would be found to exis t, is that of a soldier returning to
his base to resume his military service. This is the very requirement that
had once been employed by the legi slature. However, it was found
wanting, obviously for being unfair to the motorist who would normally
have no way of knowing whether this requirement had been fulfilled.
[28] For these reasons I find that neit her the limitation to the exception
that was found to exist by the court a quo nor the limitation contended for
by counsel for the respondent in his alternative argument, can be
21
justified. I therefore hold that, since the appellant was a permanent
member of the SANDF, he was under th e control and discipline of the
military authorities and, consequen tly, that he was 'rendering military
service' within the meaning of a 46 of the schedule to the 1989 Act when
the accident occurred.
[29] The appeal is upheld with costs.
The order of the court a quo is set aside and replaced with
the following:
'(a) The plaintiff is exempted from the limitations imposed
on a passenger by a 46 of the Schedule to Act 93 of
1989.
(b) The second defendant is ordered to pay the plaintiff's
costs.'
………………
F D J BRAND
JUDGE OF APPEAL
Concur:
Mpati DP
Marais JA
Jones AJA
Ponnan AJA