THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Cases 471 & 472/2003
REPORTABLE
In the appeal between:
GELDENHUYS & JOUBERT Appellant
and
ZENDRA VAN WYK First Respondent
ROAD ACCIDENT FUND Second Respondent
(First appeal)
and
ZENDRA VAN WYK Appellant
and
GELDENHUYS & JOUBERT First respondent
ROAD ACCIDENT FUND Second Respondent
(Second appeal)
Before: Scott JA, Cameron JA, Brand JA, Nugent JA,
and Erasmus AJA
Appeal: Monday 8 November 2004
Judgment: Tuesday 30 November 2004
2
Road Accident Fund – Regulation requiring claims for
compensation involving injury caused by unidentified vehicles to
be lodged within two years – Regulation valid
JUDGMENT
_____________________________________________________
CAMERON JA:
[1] The appeal turns on the validity of a regul ation that requires
claims for compensation from the Road Accident Fund
involving loss or damage caused by unidentified vehicles to be
lodged within two years.
[2] On 25 February 1 998 Gabriel Jozua van de r Gryp died on the
road between Duiwelskloof and Mooketsi, Limpopo province,
when the car in which he wa s travelling collided with an
unidentified truck. His wife and two young sons (14 and 11)
survived him. In these proc eedings she a lleges that in
December 1999 she in structed an attorneys’ firm to lodge a
third-party claim for her an d the minor children against the
Road Accident Fund (the Fund). She claims they negligently
failed to do this. Her current attorneys lodged the claim in
December 2000 – nearly three years after the collision. But the
Fund repudiated her claim on t he ground that it ‘became
prescribed’ after two years. She then instit uted action for
3
negligence against the first attorneys. They denied her
allegations, but also pleaded t hat the two-year period the Fund
invoked in repudiating her claim was invalid. They pleaded that
the plaintiff was entitl ed to the three-year prescription period
under the Prescrip tion Act 68 of 1969, 1 and the minor sons to
even longer: their claim agai nst the Fund would prescribe, the
attorneys argued, only one year after they attained their
majority.2
[3] Faced with this pl ea, the plaintiff join ed the Fund as second
defendant. I refer to Mrs va n der Gryp, who has since
remarried, as the plaintiff, and to the attorneys she claims were
negligent as ‘the attorneys’. The plaintiff and her sons seek
compensation for her husb and’s death from either the
attorneys because they culpably failed to lodge her claim in
time, should the two-year pe riod apply; or from the Fund,
should it not.
[4] The matter came to trial in the Pretoria High Co urt, where the
parties agreed that the validity of the regulation should be
1 Prescription Act 68 of 1969 s 11: ‘The period of prescription of debts shall be’ –
‘(c) save where an Act of Parliament provides otherwise, three years in respect of any other
debt’.
2 Prescription Act 68 of 1969 s 13(1) provides that if the creditor is a minor and prescription
would be completed before or on, within one year after, the day he or she ceases to be a
minor, ‘the period of prescription shall not be completed before a year has elapsed’ after
attainment of majority.
4
determined as a preliminary issu e under rule 33 (4). Mynhardt
J upheld the regulation. He di smissed the plaintiff’s claim
against the Fund, and ordered her to pay its costs. He directed
that her trial action against the attorneys should proceed, and
ordered them to pay her costs regarding the preliminary point.
[5] Against this order the plaintiff and the attorneys lodged
separate appeals, each with the leave of th e trial court. These
we heard together. The plaintiff contests the finding that the
regulation is valid. If that contention fails, and the trial court’s
judgment is confirm ed, she says it was in any event unfair to
saddle her with the Fund’s cost s in the court below – the
attorneys who put the regulation in issue should pay them. For
their part the attorneys also contest the regulation. Should they
fail they support the trial judge’s costs order.
[6] This Court upheld a similar tw o-year cut-off fo r unidentified
vehicle claims under the no w-repealed Multilateral Motor
Vehicle Accidents Fund Act 93 of 1989 in Mbatha v Multilateral
Motor Vehicle Accidents Fund .3 But three and half years later
a different panel, considering a similar claim by a minor also
under that legislation, held in Moloi v Road Accident Fund 4 that
3 1997 (3) SA 713 (SCA), per Harms JA for the Court.
4 2001 (3) SA 546 (SCA), per Farlam AJA for the Court.
5
the two-year cut-o ff did not apply, a nd that the periods
specified by the Prescription Act did. Though the cases
differed in that Moloi concerned a minor’s claim while Mbatha
did not, the two decisions are at odds in their a pproach to the
repealed statute, and Moloi suggested that the Pr escription Act
may have been erroneously overlooked in Mbatha.5
[7] Both adults’ and minors’ claims are at issue in this appeal.
Though as will emerge the validity of the two-year cut-off turns
on the distinctive features of the current legislation, some of the
considerations at issue in Mbatha and Moloi unavoidably recur.
[8] Section 17 is the critical pr ovision that deter mines the Fund’s
liability. It distinguishes between cases where the owner or
driver is identified, and those where neither is identified.
Section 17(1) says that th e Fund shall be obliged to
compensate any person for specified loss or damage –
‘(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 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’.
[9] Section 26 gives the Minister of Transport the duty and the
power to ‘make regul ations to prescribe any matter which in
5 2001 (3) SA 546 paras 21 and 22.
6
terms of this Act shall or ma y be prescribed or which may be
necessary or expedient to prescr ibe in order to achieve or
promote the object of this Act’ . The contested regulation 2(3)
was issued under this provision. It provides that an unidentified
vehicle claim –
‘shall be sent or delivered to the Fund, in accordance with the provisions
of section 24 of the Act [prescribing procedures for lodging a claim], within
two years from the date upon which the claim arose, irrespective of any
legal disability to which the third party concerned may be subject and
notwithstanding anything to the contrary in any law’.6
Its companion is reg 2(4), which provides that once a claim has
been sent or delivered to the Fund within th e two-year cut-off,
the liability of the Fund –
‘shall be extinguished upon the expiry of a period of five years from the
date on which the claim arose, irrespective of any legal disability to which
the third party concerned may be subject and notwithstanding anything to
the contrary in any law, unless a summons to commence legal
proceedings has been properly served on the Fund before the expiry of
the said period’.
[10] The provisions of s 21 are important to understanding the
impugned regulation. Th is provides that wh en a third party is
entitled to claim compensation, he or she may not claim from
the owner or driver or the driver’s employer, unless the Fund is
unable to pay. This has signifi cant implications. In a case
where the claimant can trace the vehicle or the driver, the
provision means that the claimant loses a valid claim against
6 Regulations promulgated under s 26 of Road Accident Fund Act 56 0f 1996, Government
Gazette 17939 of 25 April 1997, with effect from 1 May 1997.
7
an identifiable wron gdoer. In effect, the Act substitutes the
Fund as surrogate for a known wrongdoer, and replaces an
enforceable common law claim with a statutory claim against
itself.
[11] In the case of an unidentified vehi cle, this by de finition is not
so. There is no identifiable wrongdoer to sue, and the injured
party is remediless. The legisl ation instead creates a claim for
compensation where otherwis e there would have been none. 7
The Fund is not substi tuted for a wrongd oer in hand, but
intervenes to offer recourse where none existed before.
[12] It is for this reas on that the distinction the legislation makes
between identified vehicle and unidentified vehicle cases is
fundamental. This Court’s decisions have repeatedly
underscored its implicati ons, most recently in Bezuidenhout v
Road Accident Fund .8 The legislation s pecifies that loss or
damage involving identified v ehicles must be compensated on
terms expressly set out in the st atute itself (‘ subject to this
Act’). By contrast, with unidentified vehicle claims, the Minister
is given power to subject payment of compensation to a
regulatory scheme, and thus to determine the conditions
7 Mbatha 1997 (3) SA 713 (SCA) 718I-J.
8 2003 (6) SA 61 (SCA) para 6, per Vivier JA on behalf of the Court.
8
subject to which compensation may be granted (‘subject to any
regulation made under s 26’).
[13] In accordance wi th this distinction, s 23, which deals with
prescription of claims, prov ides that the right to claim
compensation in identified vehicl e cases prescrib es after three
years (s 23(1)). This matc hes the ordinary period of
prescription for debt s under the Prescription Act (s 11(d)). It
reflects the fact that the claimant in an id entified vehicle case
forfeits a claim against a kn own wrongdoer and is obliged to
seek recourse from the Fund instead. The three-year
prescription period against the known perpetrator is replaced
with an equivalent period against the Fund.
[14] In consonance with this, s 23 (2) provides th at in identified
vehicle cases prescription shal l not run against a minor, a
person detained as a patient in term s of any mental health
legislation or a person under curatorship . Again, this reflects
the ordinary regime under the Prescription Act, because the
minor (or person under other disa bility) forfeits a claim against
a known perpetrator.
[15] In unidentified vehicle cases, by contrast, the Minister has
determined that, to be valid, claims of adults and minors alike
9
must be sent or delivered to the Fund within two years. Once
so lodged, claimants have a fi ve-year period from the incident
within which to issue summons (regs 2(3) and 2(4)). The
regulatory scheme thus differs in two ways from the periods the
statute determines fo r the prescription of identified vehicle
claims. First, the two-year pe riod for lodging a claim is one
year shorter than the prescri ption period the statute specifies
for identified vehicle claims ; and, second, the regulatory
scheme makes no special allowance for minors. In both cases,
however, once a claim is lodged in terms of s 24, there is a
five-year period fr om the date of the acci dent within which
summons must be issued (s 23 (3) in the case of identified
vehicles; reg 2(4) in the case of unidentified vehicles).
[16] The reason for the sharp difference in treatment between
identified and unident ified vehicle claims is plain. In Mbatha,
Harms JA pointed out that ‘there are good reasons for having
stricter requirements for unidentified vehicle cases’:
‘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; [and]
the later the claim the greater the Fund’s problems’.9
[17] This is not to suggest that fr aud does not occur in identified
vehicle cases – it doe s – nor that unident ified vehicle claims
9 1997 (3) SA 713 (SCA) 718H-I.
10
are necessarily fals e: as pointed out in Bezuidenhout,10 this is
obviously not so. Yet the evi dentiary considerations mentioned
in Mbatha have equal force unde r the current statutory regime,
and they are relevant to understanding the intent of the Act and
hence the validity of the contested regulation. Notable here is
that s 22(1)(a) places an obligation on the owner and the driver
(if the driver is no t the owner) to furni sh to the Fund if
reasonably possible within four teen days part iculars of an
occurrence in which any person other than the driv er has been
injured or killed: the effect of this requirem ent is that in
identified vehicle ca ses the Fund or its ag ent has early notice
of an impending claim. It underscores the evidentiary
difficulties the Fund faces in unidentified vehicle cases.
[18] In the Rule 33(4) proceedings, the plaintiff and the attorneys
formally admitted that the Fu nd ‘relies preponderantly on
documentation from the South African Police Services in order
to verify [unidentified vehicle] cl aims in an effort to eliminate
fraudulent claims, and also to determine whether there was
negligence on the part of the driv er of an unidentified vehicle’
(my translation).
10 2003 (6) SA 61 (SCA) para 17 at 68D.
11
[19] After this admission was recorded, the Fund called
Superintendent Askew, of S outh African Police Services
headquarters, who is the SAPS representative on the national
traffic legislation te chnical committee. He explained police
station procedures for reports of motor vehicle accidents:
these, he observed, caused mo re than 9 000 d eaths on South
African roads every year. He testified that a report that an
unidentified vehicle had been ne gligently driven would be
investigated to determine whether the suspect vehicle could be
traced. If a criminal invest igation was warranted, the police
docket – containing statements, a copy of the accident report,
and the police plan, if any – would be referred to a senior public
prosecutor for a decision as to prosecution. If – as is inevitable
where the driver is not traced – there is no prosecution, the
case docket is sent back to the police station. There, like other
unprosecuted dockets, it is preserved for thr ee years. Then it
is destroyed.
[20] Supt Askew testified without challenge that storage capacity
at police stations was ‘not good’: they have limited space, and
accumulated documentation, sometimes sta cked in passages,
creates not only fire but health hazards, since rodents start
12
consuming the paper. Askew s tated that a police station’s
occurrence book is preserved for ten years, but does not
constitute a reliable source of detail on accidents, since only
‘very basic information’ is reco rded (such as the accident
register reference number).11
[21] Since by definition no pros ecution can be brought where
there is no identifiable offender , the effect of this evidence is
that after three years the police file in an unidentified vehicle
case would no longer exist. Its incontestable import is that the
Fund has compelling practical reas ons for requiring claims in
unidentified vehicle cases to be lodged and dealt with promptly.
Longer cut-off periods might make it im possible for the Fund to
take any practicable steps to ve rify such claims and may place
the Fund at risk of frauds that woul d inhibit its capacity to fulfil
its public purposes.
[22] It is against this background that the validit y of reg 2(3) must
be assessed. Counse l for the plaintiff and for the attorneys, at
one on this point, contended that th e regulation was invalid.
They invoked the provisions of the Prescription Act, contending
11 It is worth recording that Supt Askew, although the most senior official in police
headquarters dealing with motor vehicle accidents, was unaware of reg 2(1)(c), which
requires a claimant in an unidentified vehicle case to submit ‘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’ (see Road Accident Fund v Thugwana 2004 (3) SA
169 (SCA) para 16).
13
that these render ed the regulation stipulat ing the two-year cut-
off invalid. The Prescr iption Act, they point ed out, provides in
general for three years’ prescription in respect of a ‘debt’, ‘save
where an Act of Parliament prov ides otherwise’ (s 11(d)). In
addition, its provis ions apply (subject to exceptions not
relevant) –
‘save in so far as they are inconsistent with the provisions of any Act of
Parliament which prescribes a specified period within which a claim is to
be made or an action is to be instituted in respect of a debt or imposes
conditions on the institution of an action for the recovery of a debt’ (s
16(1)).
The Act’s express prescription per iods for identified vehicle
claims, the plaintiff and the attorneys contended, are the sort of
legislation this prov ision envisages. Th e regulations, by
contrast, do not constitute and were not intend ed to have the
force of a parliamentary enactme nt and therefor e could not
override the Prescription Act’s periods.
[23] But to invoke the Prescription Act is to start from the wrong
premise. It is to assume, a prio ri, that an unidentified vehicle
claimant is owed a ‘debt’, and that the debtor is the Fund. This
is to treat the Fund as though it were a wrongdoer, and the
claimant its victim. That is not correct. The source of the
Fund’s liability to unidentified ve hicle claimants is not a pre-
existing legal right or its i nfringement. The Fund is liable
14
because the legislation creates a pu blic benefit, accessible on
conditions that the Ac t itself expressly lic enses the Minister to
stipulate by regulation.
[24] The Act in other wo rds does not make the Fund
unconditionally liable to unidentified vehi cle claimants. It
expressly subordinates the Fund’s liability to them to ‘any
regulation made under section 26’. This empowers the
Minister to regulate the liability owed to this category of
claimants: and, as Harms JA pointed out in Mbatha, the power
to regulate necessarily includes the power ‘to prescribe time
limits within which procedur al acts must be done’.12 The Act in
this case expressly gives the Minister the power that in Mbatha
was held to be implied.
[25] The regulation plainly ma kes the lodging of the claim within
the two-year period a preconditi on to the existence of the debt
under the Act. 13 If the claim is not l odged within this period,
there is no ‘debt’, and the provisions of the Pre scription Act do
not come into play.
12 1997 (3) SA 713 (SCA) 718F.
13 Compare the analysis in Mbatha 1997 (3) SA 713 (SCA) 716C (the regulation ‘subjects the
liability of the Fund to a so-called condition’), 717E-F (Fund’s liability is ‘made subject to a
number of conditions’), 719G (the claim ‘became “prescribed” … two years after the
collision’).
15
[26] In exercising the power to regulate the Fund’s liability to
unidentified vehicle cl aimants, the Minister must of course act
lawfully, and the regul ations issued must survive scrutiny for
conformity with the usual requirements of legality and
reasonableness (bearing in mind that it is funded by the public
from a fuel levy: s 5(1)(a)). As this Court stated in
Bezuidenhout, section 26(1) –
‘cannot empower the making of regulations which widen the purpose and
object of the present Act or which are in conflict therewith. … …
[U]nderlying the concept of delegated legislation is the basic principle that
the Legislature delegates because it cannot directly exert its will in every
detail. All it can in practice do is to lay down the outline. This means that
the intention of the Legislature, as indicated in the enabling Act, must be
the prime guide to the meaning of del egated legislation and the extent of
the power to make it’.
14
[27] In Bezuidenhout, it was also sugges ted (thoug h it was
unnecessary to decide), that the regulation at issue (which
required physical contact with the offending vehicle in
unidentified vehicle cases) might be unreasonable in the
classic sense of not having been authorised by the legislation.15
This underscores the ample co nstitutional and common law
safeguards that hem the Minister ’s power in exercising the
authority the statute creates.
14 2003 (6) SA 61 (SCA) para 10, per Vivier JA for the Court.
15 2003 (6) SA 61 para 17.
16
[28] None of these safeguards suggest th at the power was
exercised improperly here. On the contrary, the imposition of a
two-year period for l odging claims in unide ntified vehicle cases
is in my view an unimpeachab le exercise of the Minister’s
regulatory power. It gives claima nts a reasonable time within
which to lodge their claims in accordance with the procedures
the statute prescribes, while gi ving the Fund the opportunity to
undertake investigations necessa ry to safeguard its resources
against fraud.
[29] Although the test for invalidity is objective, I should point out
that the minor children in the pr esent case had the plaintiff as
their guardian. On the facts she pleaded , she was able to and
indeed tried to comply with the two-year period in her own and
their behalf, but was thwarted by the attorneys’ culpable
conduct. We were not asked to determine either the
application or the validity of the regulation wher e the interests
of a minor claimant ar e not so protected (a s for instance when
a minor has no guardian). I expr ess no view on such a case,
where different consid erations may apply (see Gassner NO v
Minister of Law and Order).16
16 1995 (1) SA 322 (C) (van Zyl J).
17
[30] In conclusion I emphasise that the current legislation
expressly empowers the Minister to subordinat e the Fund’s
liability to unidentified vehicle claimants to condition. In Moloi it
was held, by contrast, that the now-repealed statute did not
empower the Minister by regulati on ‘to endeavour to convert’
the Fund’s ‘unconditional liability’ into a conditional liability. 17
That as shown differs fr om the position here: s 17(1)(b) clearly
subjects the Fund’s liability to unid entified vehicle claimants to
regulatory condition, which was validly imposed.
Costs
[31] As pointed out, the trial j udge ordered the plaintiff to pay the
Fund’s costs in the cour t below. That or der was unfair, since
the plaintiff joined the Fund onl y because the attorneys sought
to impugn the regul ation. The appropriate order would have
been for the attorneys to pay the co sts of both the plaintiff and
the Fund in regard to the preliminary point.
[32] As for the costs on appeal , counsel for the attorneys sought
to contend that the plai ntiff should not have incurred costs by
launching her own appeal; but as her counsel pointed out, once
17 2001 (3) SA 546 (SCA) para 25.
18
the attorneys appealed she was obliged to enter the fray since
if the attorneys’ appeal su cceeded, but the judgment
dismissing her claim against the Fund stood, she might have
been remediless. The appropriate order is in my view that the
attorneys should pay the costs of both appeals.
ORDER:
1. Except to the ex tent indicated in pa ra 3 below, both
appeals are dismissed with costs.
2. The first defendant in the co urt below (appellant in the
first appeal; first respondent in the second ap peal) is to
pay the costs of appeal of the second respondent in both
appeals and of the plai ntiff (first res pondent in the first
appeal; appellant in the second appeal).
3. Para 4 of the order of the co urt below is set aside. In its
place there is substituted:
‘The first defendant is or dered to pay the second
defendant’s costs in rega rd to the preliminary
proceedings.’
E CAMERON
J U D G E O F A P P E A L
CONCUR:
SCOTT JA
BRAND JA
NUGENT JA
A R ERASMUS AJA