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[2019] ZASCA 173
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Jones v Road Accident Fund (1286/18) [2019] ZASCA 173; 2020 (2) SA 83 (SCA) (2 December 2019)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1286/18
In
the matter between:
A A
JONES

APPELLANT
and
ROAD
ACCIDENT
FUND

RESPONDENT
Neutral Citation:
Jones v RAF
(1286/18)
[2019] ZASCA 173
(2 December 2019)
Coram:
Wallis and Zondi JJA and
Tsoka, Gorven and Eksteen AJJA
Heard:
18 November 2019
Delivered:
2
December 2019
Summary:
Motor
vehicle accident – claim for compensation against Road Accident
Fund in terms of
s 17(1)
(a)
of the
Road Accident Fund Act 56 of 1996
– identification must
establish the identity of the owner or driver of offending motor
vehicle. Identification of a series
of vehicles and their owners –
requirements of
s 17(1)
(a)
not met – claim falls under
s 17(1)
(b)
of the Act read with
regulation 2.
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from
:
The Gauteng Division of the High Court, Pretoria (Van der Schyff AJ
sitting as court of first instance):
The
appeal is dismissed with costs.
___________________________________________________________________
JUDGMENT
Zondi JA (Wallis JA
and Tsoka, Gorven and Eksteen AJJA concurring):
[1]
Two issues arise for determination in this appeal. The first, is
whether a claim for
compensation lodged by the appellant, Mr A Jones
with the Road Accident Fund (RAF) is a claim in terms of
s 17(1)
(a)
of the Road Accident Fund Act 56 of 1996 (the Act), or one in terms
of s 17(1)
(b)
of the Act read with regulation 2(1)
(b)
of the Regulations promulgated in terms of s 26 the Act. The
second issue is whether the appellant's claim has become prescribed.
The
difference between s 17(1)
(a)
and s 17(1)
(b)
is
that the former is concerned with claims where the identity of the
owner or driver of the insured vehicle has been established
and the
latter with the case where the identity of the owner or driver of the
insured vehicle has not been established. In the
former case the
prescriptive period is three years, while in the latter it is two
years from the date of the accident.
[2]
The Gauteng Division of the High Court, Pretoria (Van der Schyff AJ)
determined that
the appellant's claim was a claim that falls under
s 17(1)
(b)
of the Act, read with regulation 2(1)
(b)
.
The high court accordingly held that the appellant's claim had become
prescribed as it was not lodged within the prescribed period
of two
years contemplated in regulation 2. In the result the high court
dismissed the appellant's claim with costs but granted
the appellant
leave to appeal to this court.
[3]
The issue allegedly arose in the following circumstances: On 17
February 2012 the
appellant was the driver of a Volkswagen Golf motor
vehicle with registration letters and number HGS 171 NW. On
the road
between Orkney and Stilfontein,
a
chunk of gold ore, forming part of a load being transported from the
mine at Orkney to a refining facility,
fell
from or became dislodged from a moving truck (insured vehicle). He
alleged that this was as a result of the negligence of the
insured
driver. The rock penetrated the windscreen of the appellant's vehicle
and struck him on the forehead. In consequence the
appellant claimed
to have sustained a head and brain injury. Following the accident and
the resultant bodily injuries the appellant
on 15 February 2015
lodged a claim with the RAF.
[4]
Thereafter, on 25 April 2016 the appellant caused summons to be
issued in the high
court against the RAF for the damages he had
allegedly sustained. In paragraph 3.2 of his amended particulars of
claim the appellant
listed 23 vehicles and the nine owners thereof.
He contended that one of these vehicles was probably the insured
vehicle conveying
the ore at the time of the accident. The RAF
defended the action and filed a special plea in which it contended
that the insured
vehicle was a vehicle as contemplated in s 17(1)
(b)
,
read with regulation 2. This covers a vehicle of which neither the
identity of the owner, nor the identity of the driver has been

established. The RAF contended that the appellant's claim had become
prescribed because it was lodged more than two years after
the cause
of action arose.
[5]
By agreement between the parties the high court made an order that
the special plea
be separately adjudicated. To that end on 22 August
2013 the parties prepared a stated case setting out the issues to be
decided
in terms of rule 33(4) of the Uniform Rules of Court. The
material portion of the document reads as follows:
‘
THE AGREED FACTS
1.1
The action, instituted in terms
of the Road Accident Fund Act, 56 of 1996 (“the Act”),
arises from bodily injuries sustained
by the plaintiff (whilst being
the driver of his vehicle) in a motor vehicle accident which occurred
on 17 February 2012 on the
road between Orkney and Stilfontein.
2.
The accident allegedly occurred when a
rock, forming part of gold ore being transported fell from or became
dislodged from a heavy
motor vehicle/truck trailer combination (“the
insured vehicle”), penetrated the windscreen of the plaintiff’s

vehicle and struck the plaintiff on his head – this allegation
is not admitted by the defendant, but can be accepted solely
for
purposes of adjudicating the prescription issue which falls to be
decided.
3.
3.1
The accident was allegedly caused by the negligence of the driver of
the insured vehicle
which conveyed the ore, such negligence being set
out in paragraph 5 of the particulars of claim – this
allegation is not
admitted by the defendant, but can be accepted
solely for purposes of adjudicating the prescription issue which
falls to be decided;
and
3.2
Whilst the driver of the insured vehicle could not be identified, a
series of vehicles and
their owners were subsequently identified, one
of which probably conveyed the ore at the time and of which the
details are set
out in paragraph 3.2 of the particulars of claim (one
being in the alternative to the other).
4.
The plaintiff’s claim was lodged
more than two years after the date on which the cause of action arose
i.e. the date of the
accident, i.e. too late for a claim in terms of
section 17(1)
(b)
of the Act (read with regulation 2(1)) but in
time for a claim in terms of section 17(1)
(a)
thereof.
5.
THE PLAINTIFF’S CASE
It is the plaintiff’s case that
5.1
the fact that a group of vehicles and their owners were identified of
which one was the
vehicle from which the ore fell and injured the
plaintiff, is sufficient identification to place the claim outside
the envisaged
scope of section 17(1)
(b)
of the Act and
regulation 2(1)(b) (“the regulation”) of the regulations
promulgated in terms of the Act; and
5.2
which means that the insured vehicle was not a vehicle where the
identity of the owner has
not been established (as contemplated in
the regulation) albeit that the identity of the driver has not been
established; and
5.3
that the claim is therefore a claim which falls within the scope of
section 17(1)
(a)
of the Act, being a claim where the identity
of the owner of the vehicle has been established and that it was
accordingly timeously
lodged.
6.
THE DEFENDANT’S CASE
It is the defendant’s case that
6.1
the insured vehicle was a vehicle as contemplated in section 17(1)
(b)
and in the regulation viz. one of which neither the identity of the
owner nor the identity of the driver has been established and
6.2
the claim has become prescribed because it was lodged more than two
years after the cause
of action arose.
7.
THE ISSUE FOR ADJUDICATION
The parties agree that the following
issues serve to be adjudicated:
7.1
Is the plaintiff’s claim a claim as contemplated in section
17(1)
(a)
of the Act or is it a claim to be adjudicated in
terms of and subject to section 17(1)
(b)
read with regulation
2(1)(b) of the regulations promulgated in terms of the Act?
7.2
Has the plaintiff’s claim accordingly become prescribed for
want of lodging it within
the prescribed two years contemplated in
regulation 2(1)(b) or has it been timeously lodged?’
[6]
This is what was dealt with by Van der Schyff AJ. She found in favour
of the respondent
on both issues. According to the high court the
crisp question was whether, where an accident is caused in
circumstances where
it is not possible to identify a specific vehicle
as ‘the insured vehicle’, but it is possible to identify
a series
of vehicles and their owners, one of which probably caused
or contributed to the accident at the time and place where the
accident
occurred, the claim falls in the category of what is often
referred to as an ‘identified’ claim as opposed to an
‘unidentified’
– or hit-and-run – claim. The
high court rejected the appellant’s contention that the stated
case before it did
not involve the interpretation of any provision of
the Act and that it had only to be discerned whether the claim was
formulated
as a so called ‘identified’ claim. It held
that the substance of the appellant’s particulars of claim, not
the
form in which it was formulated, should be considered and that
the enquiry should involve the interpretation of s 17(1)
(a)
.
I cannot find fault with the high court's reasoning in this regard.
[7]
It went on to hold at para 28:
‘
In the current case, a series
of vehicles and their owners were identified, 23 vehicles to be
precise, respectively linked to one
of 9 different vehicle owners,
one of which probably conveyed the ore at the time (one being in the
alternative to the other).
This scenario is to be distinguished from
a multi-vehicle accident where more than one vehicle was undeniably
involved in the collision,
but the degree of fault of each driver
needs to be determined. In the current case the driver and/or owner
of only one out of 23
vehicles probably caused the plaintiff’s
damages. The vehicle is not identified, and as a consequence neither
can the identity
of the driver or owner from whose vehicle the gold
carrying ore fell, be established
prima
facie
on a balance of
probabilities. On the facts as accepted for purposes of deciding the
stated case, the plaintiff is not able to
show the causal link
between any specific vehicle being driven at a specific time, and the
damages that he suffered. It accordingly
follows that, on these
facts, the claim had to be instituted in accordance with s 17(1)
(b)
.’
[8]
In argument before us counsel for the appellant submitted that if the
claim, as formulated,
is a claim where the owner of the insured
vehicle has been identified, the claim is one which factually clearly
falls within the
provision of s 17(1)
(a)
of the Act. He said that the only 'unidentified' aspect of the claim
was that the driver of the vehicle at the time had not been

identified. He emphasised that s 17(1)
(a)
requires no more than identification of either the driver or the
owner and, if either one is identified, it is clearly a claim
which
falls under that section and not s 17(1)
(b)
.
The
issue was whether the identification tendered was sufficient to
establish the identity of the owner of the insured vehicle.
[9]
It should be mentioned that it was accepted by all that the identity
of the driver
was not established. The issue was whether the identity
of the owner of the insured vehicle had been established within the
meaning
of those words in the section in question. It was argued on
behalf of the appellant that the fact that the appellant relied on a

number of different vehicles (identified by their registration
numbers) and different owners in the alternative, did not render
his
claim one against an 'unidentified' vehicle in terms of s 17(1)
(b)
and the regulation. This was so, it was argued, because, in the first
place, a claim in terms of s 17(1)
(a)
,
but for the enactment and provisions of the Act, has its origin in
the common law as a delictual claim against the wrongdoer.
So too a
claim in terms of s 17(1)
(b)
,
save
that the absence of knowledge of the identity of the owner or driver
made it difficult to pursue a claim at common law.
[1]
The Act, so the argument
proceeded, effectively provides that the RAF steps into the shoes of
such common law wrongdoer, as the
previous legal right to claim
compensation for damages suffered from the common law wrongdoer has
been replaced by a statutory
legal right to claim from the RAF.
[10]
The principal argument advanced on behalf of the RAF was that the
appellant's identification
did not bear scrutiny as neither the
driver, nor the owner's identity had been established. It was argued
that furnishing a series
of vehicles and their owners on the
assumption that one of them caused the accident does not amount to
establishing the identity
of the owner of the vehicle involved in the
specific accident. It was submitted that because the appellant was
uncertain about
the identity of the owner of the accident-causing
vehicle, the appellant should have lodged his claim for compensation
within two
years of the date of the accident under s 17(1)
(b)
,
which does not require him to establish the identity of the driver or
owner.
[11]
The question whether the appellant’s identification of the
owner of the insured vehicle
meets the requirements of the Act
involves the interpretation of s 17(1) which is the section that
imposes the obligation
on the RAF to provide compensation. The
relevant portion of s 17(1) reads:
'17. Liability of Fund and agents
(1) The Fund or an agent shall –
(a)
subject to this Act, in the case of a claim for compensation under
this section arising
from the driving of a motor vehicle where the
identity of the owner or the driver thereof has been established;
(b)
subject to any regulation made under section 26, in the case of a
claim for compensation
under this section arising from the driving of
a motor vehicle where the identity of neither the owner nor the
driver thereof has
been established,
be obliged to compensate any person
(the third party) for any loss or damage which the third party has
suffered as a result of any
bodily injury to himself or herself or
the death of or any bodily injury to any other person, caused by or
arising from the driving
of a motor vehicle by any person at any
place within the Republic, if the injury or death is due to the
negligence or other wrongful
act of the driver or of the owner of the
motor vehicle or of his or her employee in the performance of the
employee's duties as
employee: . . .'
[12]
The regulations at issue in the present appeal are regulations
2(1)
(a)
and
(b)
of the regulations contained in
Government Gazette 31249 of 21 July 2008. They read:
'2
Further provision for liability of Fund in terms of section 17(1)
(b)
(1)(a) A claim for compensation
referred to in section section 17(1)
(b)
of the Act shall
be sent or delivered to the Fund in accordance with the provisions of
section 24 of the Act, within two years
from the date upon which the
cause of action arose.
(b) A right to claim compensation from
the Fund under section 17(1)
(b)
of the Act in respect of loss
or damage arising from the driving of a motor vehicle in the case
where the identity of neither the
owner nor the driver thereof has
been established, shall become prescribed upon the expiry of a period
of two years from the date
upon which the cause of action arose,
unless a claim has been lodged in terms of paragraph (a).
(c) In the event of a claim having
been lodged in terms of paragraph (a) such claim shall not prescribe
before the expiry of a period
of five years from the date upon which
the cause of action arose.
(2) Notwithstanding anything to the
contrary contained in any law a claim for compensation referred to in
section 17(1)
(b)
of the Act shall be sent or delivered to the Fund within two years
from the date upon which the cause of action arose irrespective
of
any legal disability to which the third party concerned may be
subject.
'
[13]
This court, in
Mbatha
v Multilateral Motor Vehicle Accident Fund
,
[2]
explained the rationale for this regulation in unidentified vehicle
cases in these terms:
'In these cases the possibility of
fraud is greater; it is usually impossible for the Fund to find
evidence to controvert the claimant's
allegations; the later the
claim the greater the Fund's problems . . .'
[3]
[14]
The question in this appeal is whether the appellant has established
the identity of the driver
or owner of the truck from which the rock
which caused injury to him, fell or was dislodged. This turns on the
meaning to be attached
to the word 'established' appearing in s 17(1)
of the Act.
[15]
One is required to interpret s 17(1) in accordance with the
principles enunciated in recent
cases such as
KPMG
[4]
,
Endumeni
[5]
,
Bothma-Batho
[6]
and
Dexgroup
.
[7]
The approach to interpretation of written instruments, whether they
are contracts or statutes, is usefully summarised thus in
Dexgroup
:
'. . . These cases make it clear that
in interpreting any document the starting point is inevitably the
language of the document
but it falls to be construed in the light of
its context, the apparent purpose to which it is directed and the
material known to
those responsible for its production. Context, the
purpose of the provision under consideration and the background to
the preparation
and production of the document in question are not
secondary matters introduced to resolve linguistic uncertainty but
fundamental
to the process of interpretation from the outset.'
[16]
In para 25 of
Endumeni
Wallis JA pointed out that
'...[s]ometimes the language of the
provision, when read in its particular context, seems clear and
admits of little if any ambiguity.
Courts say in such cases that they
adhere to the ordinary grammatical meaning of the words used. However
that too is a misnomer.
It is a product of a time when language was
viewed differently and regarded as likely to have a fixed and
definite meaning, a view
that the experience of lawyers down the
years, as well as the study of linguistics, has shown to be mistaken.
Most words can bear
several different meanings or shades of meaning
and to try to ascertain their meaning in the abstract, divorced from
the broad
context of their use, is an unhelpful exercise. The
expression can mean no more than that, when the provision is read in
context,
that is the appropriate meaning to give to the language
used. At the other extreme, where the context makes it plain that
adhering
to the meaning suggested by apparently plain language would
lead to glaring absurdity, the court will ascribe a meaning to the
language that avoids the absurdity. This is said to involve a
departure from the plain meaning of the words used. More accurately

it is either a restriction or extension of the language used by the
adoption of a narrow or broad meaning of the words, the selection
of
a less immediately apparent meaning or sometimes the correction of an
apparent error in the language in order to avoid the identified

absurdity.'
[17]
The primary object of the Act as set out in s 3 is 'the payment
of compensation in accordance
with this Act for loss or damage
wrongfully caused by the driving of vehicles'. In achieving this
purpose the Act provides for
the establishment of the RAF and
mechanisms including procedures for the payment of compensation for
loss or damage wrongfully
caused by the driving of vehicles. Section
21 of the Act abolishes a claimant’s common law delictual claim
and substitutes
a statutory claim against the RAF in its place to
ensure the recovery of damages by a road accident victim, who may
have a proven
legal claim and proven damages against the common law
wrongdoer, but may find that the wrongdoer is unable to pay his or
her damages.
[18]
The Concise Oxford English Dictionary 12ed defines 'established' to
mean 'show to be true or
certain by determining the facts'. This is
the ordinary meaning of the word 'established' and in my view, having
regard to the
context in which it appears and the purpose of the Act,
it is the appropriate meaning to give to the language used in
s 17(1).
In other words, there must be a sufficiently close
connection between a readily identifiable vehicle being driven at a
specific
time and the injury that the claimant suffered.
[19]
In the present appeal the appellant sought to bring his claim within
s 17(1)
(a)
in order to overcome the problem of
prescription. In support of that and in an attempt to establish the
identity of the owner of
the offending vehicle the appellant
identified 23 vehicles, having nine different owners, in the
alternative, by their registration
numbers. One of these probably
conveyed the ore at the time of the accident. In other words, the
appellant’s identification
did not establish that a specific
vehicle was driven at the time and place of the accident and that the
chunk of ore fell or was
dislodged from that vehicle. It was
contended on behalf of the appellant that the identification he
provided was sufficient to
bring his claim within the ambit of s
17(1)
(a)
and was sufficient to enable the RAF to undertake its
investigation. I disagree. The appellant’s identification did
not establish
the identity of the owner or driver of the motor
vehicle which caused the accident. It was nothing more than a sample
of vehicles,
one of which, may have been the vehicle from which the
ore fell on the day of the accident.
[20]
This case does not fall into the category of cases such as
Mazibuko
v Santam Insurance
[8]
in
which a plaintiff, who was uncertain as to which of two persons was
legally responsible for the injury sustained by him, sued
both of
them in the alternative and jointly and severally, as he was
permitted to do under rule 10(3) of the Uniform Rules of Court.
The
distinguishing feature was that in those cases the identity of the
owners or drivers of the motor vehicles involved or contributing
to
the accident was established but what remained to be established was
their legal responsibility. In the present case it is not
alleged
that more than one of the 23 vehicles was involved in the accident.
The case was pleaded and the stated case formulated
on the basis that
one of the 23 vehicles identified by the appellant probably conveyed
the ore at the time and place of the alleged
accident.
[21]
In my view the word 'established’ appearing in s 17(1)
does not bear the extended
meaning contended for by the appellant.
The appellant's construction, if adopted, would lead to a conclusion
that would stultify
the broader operation of the Act. It would have
the effect of blurring the distinction the legislature draws between
a claim under
s 17(1)
(a)
and one under s 17(1)
(b)
.
The ordinary meaning of ‘established’ does not lead to
absurdity. Its meaning does not therefore require to be extended.
[22]
Although in terms of s 17(1) the RAF is liable to compensate
both categories of claimants
for damages arising from driving of a
motor vehicle, irrespective of whether the identity of the owner or
the driver of the motor
vehicle has been established, its liability
under s 17(1)
(b)
is rendered subject to the regulation 2(1) which stipulates that a
claim under s 17(1)
(b)
should be lodged within two years of the date of the accident.
No constitutional
challenge was raised to the different prescriptive periods applicable
to the two types of claim. The reason appears
to be a view that the
regulation serves
a
legitimate government purpose, which is to eliminate fraud and to
facilitate proof, because the possibility of fraud is greater
in
unidentified vehicle, since it is usually difficult for the RAF to
find evidence to controvert the claimant's allegations.
[9]
In this case the claim prescribed because it was not lodged with the
RAF within the period of two years from the date of the accident.
[23]
In the result the appeal is dismissed with costs.
D H Zondi
Judge of Appeal
APPEARANCES:
For
appellant:          W P
de Waal SC
Instructed by:
Morare Thobejane
Attorneys, Pretoria
Maponya Attorneys,
Bloemfontein
For respondent:
C H P Hattingh (heads of argument prepared by C H Badenhorst)
Instructed by:
Adams & Adams,
Pretoria
Honey Attorneys,
Bloemfontein
[1]
Engelbrecht v Road Accident Fund &
another
[2007] ZACC 1
;
2007 (6) SA 96
(CC) para 20.
[2]
Mbatha v Multilateral Motor
Vehicle Accident Fund
[1997]
ZASCA 25
;
1997 (3) SA 713
(SCA) at 718H-I.
[3]
See also
Road
Accident Fund v Thugwana
[2003] ZASCA 139
;
[2004] 1 All SA 275
(SCA) para 10).
[4]
KPMG Chartered Accountants (SA) v
Securefin Ltd and another
2009 (4) SA 399
(SCA) paras 39–40.
[5]
Natal Joint Municipal Pension Fund
v Endumeni Municipality
2012 (4) SA 593
(SCA) para 18.
[6]
Bothma-Batho Transport (Edms) Bpk
v S Bothma & Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA) para 12.
[7]
Dexgroup (Pty) Ltd v Trustco Group
International (Pty) Ltd
2014 (1) All SA 375
(SCA) paras 10–17.
[8]
Mazibuko v Santam Insurance and
another
1982 (3) SA 125
(A).
[9]
Bezuidenhout v Road Accident Fund
[2003] 3 All SA 249
(SCA) para 12.