Engelbrecht v Road Accident Fund and Another (CCT57/06) [2007] ZACC 1; 2007 (6) SA 96 (CC); 2007 (5) BCLR 457 (CC) (6 March 2007)

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[2007] ZACC 1
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Engelbrecht v Road Accident Fund and Another (CCT57/06) [2007] ZACC 1; 2007 (6) SA 96 (CC); 2007 (5) BCLR 457 (CC) (6 March 2007)

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IN
THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 57/06
[2007] ZACC 1
RENIER ALBERTUS
HERMANUS ENGELBRECHT
Applicant
versus
THE ROAD ACCIDENT FUND
First Respondent
THE MINISTER OF
TRANSPORT
Second Respondent
Heard on
: 2 November 2006
Decided
on : 6 March 2007
JUDGMENT
KONDILE
AJ:
Introduction
[1] This application for leave to appeal against the decision of the
Cape High Court concerns the constitutionality of regulation
2(1)(c)
1
of the regulations made under the Road Accident Fund Act 56 of 1996
(“the Act”). The Act establishes the Road Accident Fund
(“the
Fund”), the object of which is the payment of compensation to
third parties for loss or damage wrongfully and negligently
caused
by the driving of motor vehicles.
2
[2] The applicant is Mr Renier Albertus Hermanus Engelbrecht. The
first respondent is the Road Accident Fund and the second respondent
is the Minister of Transport (“the Minister”).
Background
[3] On 22 February 2002 and on the road between Clanwilliam and
Citrusdal, the applicant’s motor vehicle was involved in a
collision
with a truck. As the truck did not stop after the
collision the applicant was unable to establish the identity of its
owner or
driver. The applicant was injured in the collision.
[4] After the collision the applicant was in hospital for two to
three days. The ophthalmologist who treated the applicant considered
that the latter could have returned to work on 5 March 2002.
[5] Section 17(1)(b) of the Act says:
“
The Fund
. . . shall . . . 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 . . . caused by or arising from the driving of a
motor vehicle by any person . . . , if
the injury . . . is due to
the negligence or other wrongful act of the driver or of the owner
of the motor vehicle . . . .”
[6] Section 26(1) of the Act reads:
“
The
Minister shall or may make regulations to prescribe any matter which
in terms of this Act shall or may be prescribed or which
may be
necessary or expedient to prescribe in order to achieve or promote
the object of this Act.”
[7] On 1 March 2002 the applicant’s attorneys addressed a letter
to the station commander of the South African Police Service,
Clanwilliam, which recorded the time, date, location and
circumstances of the collision between the applicant’s motor
vehicle
and an unidentified truck. The applicant himself went to the
police on 4 May 2002 to submit an affidavit with particulars of the
accident.
[8] In due course the applicant instituted action against the Fund
in the Cape High Court, claiming compensation in an amount of
R214
324,80 in terms of section 17(1)(b) of the Act. In his particulars
of claim the applicant alleged that he was injured as a
result of
the negligence of the driver of the unidentified truck.
[9] The Fund defended the action. In its plea it admitted that a
collision occurred on the aforesaid road involving the applicant’s
motor vehicle but denied knowledge of the applicant’s other
allegations and put him to the proof thereof.
[10] Shortly before the trial in the High Court, the Fund introduced
a special plea. In the special plea the Fund took the preliminary
point that it was not liable to compensate the applicant because he
had failed to comply with regulation 2(1)(c), made in terms
of
section 26 of the Act. Regulation 2(1)(c) provides:
“
(1) In
the case of any claim for compensation referred to in section
17(1)(b) of the Act, the Fund shall not be liable to compensate
any
third party unless –
. . . .
(c) the third party submitted,
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”.
[11] The applicant subsequently conceded that he did not comply with
regulation 2(1)(c) because he lodged the affidavit only on
4 May
2002. However, in his amended replication to the Fund’s special
plea, the applicant contended that regulation 2(1)(c) is
in conflict
with the provisions of section 34 of the Constitution. Section 34 of
the Constitution provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
Therefore, it is argued that regulation 2(1)(c) is invalid because
it imposes an unreasonable and unjustifiable limitation on his
right
of access to courts.
[12] The Minister was later joined as the second defendant. The
Minister then filed notice of his intention to oppose the matter
in
respect of the constitutionality of regulation 2(1)(c).
High Court decision
[13] At the conclusion of the hearing in the High Court Allie J
rejected the constitutional challenge and dismissed the applicant’s
claim with costs. In effect she upheld the special plea.
[14] In dismissing the claim the High Court stated:
“
It
follows that I am not persuaded that Regulation 2(1)(c) is
unconstitutional and unjustifiable, nor that it constitutes a
limitation
on the rights of access to the courts. It is accordingly
not necessary to decide whether its objectives can be achieved by
less
restrictive means.”
3
It is against this finding of the High Court, as well as against the
order dismissing the applicant’s claim, that the applicant
seeks
leave to appeal directly to this Court.
Leave
to appeal directly to this Court
[15] The application raises a constitutional issue as envisaged in
section 167(3)(b) of the Constitution. The matter turns on a
direct
application of the Constitution and is of public importance. The
functioning of the Fund affects all road users in South
Africa.
There has been extensive litigation involving regulation 2(1)(c).
4
It is desirable that a final decision be reached on its
constitutionality.
[16] Furthermore, the applicant contends, correctly in my view, that
since the Supreme Court of Appeal (“the SCA”), in
Makwetlane,
5
has already ruled negatively on the subject matter of the
constitutionality of regulation 2(1)(c), there would be no point in

attempting to appeal to that Court or to the Full Bench of the High
Court, which is bound by the SCA’s decision. It is therefore
in
the interests of justice that leave to appeal be granted in this
case.
The
Makwetlane decision
[17] In
Makwetlane
, the Court split on the question of the
constitutionality of regulation 2(1)(c). The minority judgment of
Ponnan AJA held that
the regulation violates the Constitution and is
ultra vires.
6
The majority, in a judgment written by Marais JA and concurred in by
Howie P, Jones AJA and Southwood AJA, held that regulation
2(1)(c)
is not inconsistent with the Constitution because the claimant in a
hit-and-run case has no enforceable claim at common
law. The
majority accordingly reasoned that section 34 of the Constitution
did not come into the picture at all since the failure
to comply
with regulation 2(1)(c) prevented a justiciable claim from coming
into existence.
7
[18] The applicant in the present case, while appealing against the
judgment of the High Court, is, in effect, challenging the
reasoning
and conclusions of the SCA, pertinent to this case, in
Makwetlane
and in the other judgments. The deponent to the Minister’s
affidavit also relies heavily on the majority judgment in
Makwetlane
, as well as on the other judgments of the SCA.
More importantly, the High Court regarded the findings in
Makwetlane
as “the applicable law”.
8
This Court is therefore obliged to consider, in the course of this
judgment, the decision of the SCA in
Makwetlane
, among
others, on which we heard full argument.
Does a victim of a hit-and-run motorist have a justiciable claim?
[19] Relying on
Makwetlane
9
the respondents have submitted that the applicant has no
pre-existing legal right or valid and legally enforceable claim at
common
law and that, therefore, regulation 2(1)(c) does not infringe
upon the applicant’s right of access to courts. It is so that
section
34 of the Constitution
finds
application where there exists a “
dispute” that can be
resolved by “the application of law”. For this reason, the first
question before us is whether a victim
of a hit-and-run motorist has
a justiciable claim.
[20] A right of action to recover damages arises from a variety of
causes including a delict, a contract or a statute. Under the
common
law, the applicant has an enforceable right not to be injured
unlawfully and culpably against all other persons, including
the
driver of a hit-and-run motor vehicle. A driver who injures any
person is at common law liable to compensate him/her for the
patrimonial loss sustained. Success or failure in recovering the
loss is another matter. In any event the establishment of the
identity of the owner or driver of the offending motor vehicle does
not guarantee success in recovering the loss or damage at common
law. It is for that reason that the compulsory motor vehicle
insurance regime came into existence in the first place. The
following
remarks of Centlivres CJ in
Barkett v SA National Trust
and Assurance Co Ltd
10
are in this respect apposite:
“
It is
notorious that there are many people of very moderate means or even
of no means who own cars. All these people must insure
under the Act
and the right of recourse given to insurance companies in the
circumstances stated in sec. 14 of the Act
11
is in many cases more illusory than real. The object that the
Legislature intended was to ensure that third parties injured
through
the negligent driving of motor vehicles should receive
adequate compensation and this object could only be achieved by
placing
a greater burden on insurance companies than they bore prior
to the passing of the Act.” (Footnote added.)
[21] At common law a justiciable claim accrued to the applicant the
moment he was injured and suffered loss or damage as a result
of the
wrongful and negligent driving of the unidentified truck,
irrespective of whether its driver or owner could be traced. The
remedy is part and parcel of a right (
ubi ius ibi remedium
).
Support for this view is found in
Oslo Land Co Ltd v The Union
Government
12
where Watermeyer JA held:
“
In
negligence cases the cause of action is an unlawful act plus damage,
and so soon as damage has occurred all the damage flowing
from the
unlawful act can be recovered, including prospective damage . . . .”
[22] Knowledge of the identity of the debtor
13
or owner or driver of the motor vehicle is relevant to the issue of
when prescription begins to run but not to the existence of
a
justiciable claim. The SCA in
Makwetlane
therefore erred when
it held that the victim of an unidentified driver would have no
justiciable claim or enforceable remedy at
common law.
14
It follows also that the related submission of the respondents
referred to in paragraph 19 above has to be rejected. The recent
decision of the SCA in
Smith
15
at least clarified the fact that a claim exists in the present
circumstances but, unless there has been compliance with the
regulation,
the claim is not enforceable.
16
[23] The applicant’s current claim has been created by a statute,
namely, the
Road Accident Fund Act. The
Act can be employed by
anyone who is injured in consequence of the negligent driving of a
vehicle in a hit-and-run situation to
claim compensation for any
loss sustained. The Act is the latest statute in a long line of
national legislation beginning with
the Motor Vehicle Insurance Act
29 of 1942. The stated primary concern of the legislature in
enacting these statutes is, and has
always been, “to give the
greatest possible protection . . . to persons who have suffered loss
through a negligent or unlawful
act on the part of the driver or
owner of a motor vehicle.”
17
[24] As indicated above, the victim of a negligent hit-and-run
motorist has a legal right to claim compensation for loss he/she
actually suffered, previously under the common law, but now under
statute. Section 17(1)(b) of the Act creates that justiciable
right.
Therefore section 34 of the Constitution finds application and the
applicant may rely on the right of access to courts.
Status of regulation 2(1)(c)
[25] Counsel for the Fund has submitted that the legislature
bestowed a wide and almost unfettered discretion on the Minister to
regulate upon a claimant’s claims in respect of injuries and/or
losses arising from collisions where the driver and/or the owner
cannot be identified. This submission ignores the fact that
Parliament required the Minister, in terms of section 26 of the Act,
to make regulations that would “
achieve or promote the object
of [the] Act
.” (Emphasis added.) The Minister does not,
therefore, have the power to limit the enforceability of a
justiciable claim as much
as he likes, if at all. I say if at all,
because it is questionable whether the Minister is empowered to
determine, by regulation,
as he has done here, the limitation of
time within which a claim may be made or an action brought or to
impose conditions on the
institution of an action, having regard to
the provisions of section 16(1) of the Prescription Act
18
and section 3 of the Act.
19
It is however unnecessary for this Court to express a view or to
pronounce on this issue as there has been no relevant challenge
from
the applicant.
[26] The
following remarks, which were relied upon by the minority in
Makwetlane
in support of its view,
20
are worth repeating here:
“
Underlying
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 lay down the outline.
This means that the intention of the legislature,
as indicated in
the outline (that is the enabling Act), must be the prime guide to
the meaning of delegated legislation and the
extent of the power to
make it.
. . . .
The true extent of the power
governs the legal meaning of the delegated legislation. The delegate
is not intended to travel wider
than the object of the legislature.
The delegate’s function is to serve and promote that object, while
at all times remaining
true to it.”
21
(Footnotes omitted.)
[27] Therefore, where a regulation conflicts with an Act of
Parliament or its contents are unreasonable, it is ultra vires at

common law and may be struck down by the courts. The doctrine of
legality under the Constitution also constrains public power in
a
similar manner.
22
During oral argument, the applicant tentatively offered the doctrine
of legality as an alternative route to finding regulation
2(1)(c)
unconstitutional, but acknowledged that this argument was not made
on the papers. For this reason I prefer to approach
the challenge to
regulation 2(1)(c) with reference to its compatibility with section
34 of the Constitution, rather than on the
basis of legality.
[28] The interpretation which has been given to regulation 2(1)(c)
by the SCA is that this regulation is peremptory.
23
In
Smith
,
24
the following excerpt from
Bezuidenhout
25
was cited with approval:
“
But the
imperative character of the provision is not necessarily decisive.
Even a peremptory statutory provision may be renounced
by a person
for whose benefit it has been introduced.”
Given the clear language of regulation 2(1)(c), which states that
the Fund shall not be liable to compensate unless the regulation
has
been complied with, the SCA was correct in concluding that the
regulation must be observed. However, the imperative character
of
the regulation does not render it immune to challenges on the basis
of unconstitutionality. The next question therefore is whether
regulation 2(1)(c) infringes the section 34 right of the applicant
and if so, whether such infringement is reasonable and justifiable
in terms of section 36 of the Constitution.
Section 34 of the Constitution
[29] Special time limits for the institution of litigation and the
requirements that govern litigation are not uncommon in our
legal
system. These may take the form of barring a claimant from
proceeding with the merits of a claim if the requirements are
not
met or the time limits are not complied with.
[30] I proceed to consider whether regulation 2(1)(c) is consistent
with the applicant’s section 34 right of access to courts
in order
to have his justiciable claim decided. As was held in
Moise
,
26
“untrammelled access to the courts is a fundamental right of every
individual in an open and democratic society based on human
dignity,
equality and freedom.”
27
The period of time within which to comply with a requirement,
allowed by regulation 2(1)(c), prior to the exercise of the right,
will be unfair if it is so inadequate or restrictive as to unduly
deprive the majority of claimants of the right of access to the
courts, on the one end of the spectrum, or if it is indefinite and
prolongs uncertainty because it depends on the subjective knowledge
of the provisions of the regulation on the part of the claimant, on
the other.
[31] I find it unnecessary, on the particular facts of this case, to
consider the limitation that the regulation imposes upon the
invocation of the applicant’s claim against the background
depicted by the state of affairs prevailing in South Africa, as was
done in
Mohlomi
.
28
In my view the period of 14 days is too short to amount to a “real
and fair” opportunity to access court. Periods of six months,
in
similar circumstances, have been held by this Court in
Mohlomi
to
be unconstitutional.
29
Support for this view is also found in
Thugwana
where the SCA
stated:
“
Subject
to what is said in the next paragraph, the effect of the regulation
is to deprive a claimant such as the respondent of a
valid claim in
the event of non-compliance with its provisions. Indeed, that is
likely to be the situation in the vast majority
of cases, as the
vast majority of claimants are unlikely to be aware of the
requirements of the regulation.”
30
[32] I agree that most citizens will be unaware of the regulation
and thus will be denied the right to sue the Fund. Indeed the
majority in
Makwetlane
expressed their views as follows:
“
If the
respondent’s claim against the Fund had been one which lay at
common law, [they] would have had little, if any, doubt that
limitations upon its invocation of the kind which the regulation
imposes would have been unreasonably restrictive and would have
amounted to an unconstitutional fetter upon the access to courts for
which s 34 of the Bill of Rights makes provision.”
31
They, however, found that this claim is not rooted in the common
law.
Import of the double qualifications
[33] The respondents have submitted that the double qualification in
regulation 2(1)(c), namely “if reasonably possible” and
“in a
position to do so”, renders the regulation flexible and saves it
from constitutional invalidity and, further, that the
mere fact that
a claimant has failed to comply with the provisions of regulation
2(1)(c) will not in itself put an end to the claim
a claimant may
enjoy. I disagree.
[34] The SCA in
Thugwana
has construed the two phrases as
follows:
“
If a
claimant is physically or mentally incapable of making an affidavit,
it cannot be said that he or she is in a position to do
so. He or
she would also have to be in possession of the facts which the
affidavit has to contain: what is required is an affidavit
‘in
which particulars of the occurrence concerned were fully set out’.
Once the claimant is in a position to make the affidavit,
the 14-day
period begins to run. But the claimant may have difficulties in
making the necessary arrangements to depose to an affidavit
or to
submit it to the police. If the affidavit is submitted more than 14
days after the claimant was in a position to do so, the
question
would arise whether it was reasonably possible for this to have been
done within the 14-day period. If so, the fund will
incur no
liability. If not, the 14-day period would be extended for so long
as it was not reasonably possible for the claimant
to have submitted
it – but no longer. Any other interpretation would absolve a
claimant from the obligation to submit an affidavit
at all if this
was not reasonably possible within the 14-day period, or provide no
time limit in such a case for the furnishing
of the affidavit; and
manifestly neither interpretation can have been what the legislature
intended.”
32
[35] Clearly, on this interpretation, the said phrases have no
relevance to the issue whether or not the period of 14 days
specified
in regulation 2(1)(c) is too short and unfair. They merely
serve to introduce, to the regulation, elements which are generally

of application to extinctive prescription, that is, the suspension
or the interruption of the running of the 14-day period, which
otherwise runs from the date upon which the claim in theory arises
until the expiry of the period. Their effect is to postpone
or
delay, as illustrated hereunder, the commencement or the completion
of the 14-day period, if jurisdictional facts exist which
justify
such postponement or delay.
“
In a position to do so”
[36] A
claimant may, for example, be rendered not of sound mind or
physically incapable in a motor collision. In these circumstances
and because he/she is not in a position to make and submit the
requisite affidavit to the police, the period of 14 days does not
commence to run until he/she is mentally and physically able to do
so and, in addition, has knowledge of the identity of the debtor
and
of the facts from which the claim arises and which the affidavit has
to contain.
“
If reasonably possible”
[37] A
claimant may be physically and mentally capable of making and
submitting an affidavit to the police but might submit it more
than
14 days after he/she was in a position to do so. This may occur if
it was not reasonably possible for him/her to depose to
an affidavit
and to submit it to the police in time because of, for example,
unprecedented floods.
[38] The double qualification in regulation 2(1)(c), ensures that,
in respect of a claimant who was prevented from complying with
the
14-day requirement, by circumstances over which he/she had no
control, the days when he/she was not in a position to make an
affidavit and/or when it was not reasonably possible for him/her to
submit it to the police are disregarded for the purposes of
the
14-day period. The qualification does not confer on the courts
unlimited power to render the period of 14 days flexible or
variable. The effect of this double qualification does not
counterbalance the gross inadequacy of the 14-day period. In any
event,
the adequacy of the period in the regulation must not be
tested against the truly extraordinary situation.
33
In all the circumstances, I find that regulation 2(1)(c) constitutes
a limitation of the right protected in section 34 of the

Constitution.
The
limitations analysis
[39] The ultimate question is whether the regulation is saved by the
provisions of section 36(1) of the Constitution. In other
words, is
the limitation embodied in the regulation reasonable and justifiable
in an open and democratic society based on human
dignity, equality
and freedom? The following factors, which are to some extent in
tension, have to be weighed against one another
for an appraisal of
their proportionality:
(a)
the nature and importance of the right that is limited;
(b)    the purpose for which the right is limited and
the importance of that purpose to an open and democratic society
based on freedom, dignity and equality;
(c)
the nature and extent of the limitation;
the efficacy of the limitation or the relation between the
limitation and its purpose; and
whether the desired ends could be achieved through other means
less damaging to the right in question.
[40] The section 34 right guarantees that justiciable disputes be
settled by a court of law. It is an important principle of the
rule
of law that legal disputes be decided by an independent and
impartial court in a fair and public hearing. The supremacy of
the
Constitution and the rule of law are founding values that are of
great importance in the constitutional scheme implicated herein.
We
have here a very drastic provision and an extreme limitation of the
weighty constitutional right of access to courts by victims
of
hit-and-run drivers. The period of time of 14 days prescribed in
regulation 2(1)(c) is very short and palpably unfair as it
has an
extensive impact, especially on the many illiterate and the poor of
this country. Although the means should impair as little
as possible
the right in question, the period of limitation in regulation
2(1)(c) is so inadequate that practically it nullifies
claimants’
entrenched right of access to courts. Clearly therefore regulation
2(1)(c) does not meet the threshold test of reasonableness.
[41] I proceed to consider whether the regulation is justifiable, on
the assumption that it may still be necessary, despite the
manifest
unreasonableness referred to above.
34
The purpose for which the section 34 right is limited, stated in the
evidence but not in the Act and the Regulations, is the combating
of
fraud in cases where the claimant claims compensation for injuries
arising from the driving of a motor vehicle where the identity
of
neither the owner nor driver thereof has been established. In
principle combating fraud is a legitimate purpose. However a

limitation is not justifiable if it does not contribute to an open
and democratic society based on human dignity, equality and freedom
or if there is no good reason for thinking that it would achieve the
purpose it is designed to achieve. Furthermore, the more substantial
the limitation of the fundamental right, the more compelling the
grounds of justification must be. As stated in
Mohlomi
, it
does not follow that all limitations that are meant to achieve a
laudable result are constitutionally sound for that reason:
“
Each must
nevertheless be scrutinised to see whether its own particular range
and terms are compatible with the right which [section
34] bestows
on everyone to have his or her justiciable disputes settled by a
court of law.”
35
[42] There is no evidence of a causal relationship between the
regulation and its purpose. No good reason has been shown for
thinking
that the limitation would achieve the purpose it is
designed to achieve. The evidence does not suggest that the police
or the Fund
use the affidavits for investigatory purposes. In fact,
it has been conceded by the respondents that the intended result of
the
regulation has not been attained. It is apparent that this
measure has not been carefully designed to achieve the objective in

question. Also, it has also not been shown that there are no other
means which could be employed to achieve, realistically, the
purpose
of the regulation without unduly restricting the section 34 right.
The limitation inflicts very severe harm to a right
that is of
particular importance to an open and democratic society based on
human dignity, equality and freedom. Yet it does not
even achieve
the benefits that it is designed to achieve. There is therefore no,
or insufficient, proportionality between the grave
harm done by the
regulation and its perceived beneficial purpose. The latter is far
outweighed by the former. The respondents attribute
the failure of
the regulation to attain its objective to the lack of proper
training and capacity and the under-staffing of the
police service.
Such excuses do not justify the drastic attenuation of the important
constitutional right of access to courts.
Conclusion
[43] For all these reasons the respondents have failed to show that
regulation 2(1)(c) is reasonable and justifiable in an open
and
democratic society based on human dignity, equality and freedom. I
accordingly find that regulation 2(1)(c) is inconsistent
with
section 34 of the Constitution.
Remedy
[44] I turn now to consider appropriate relief in view of the fact
that regulation 2(1)(c) has been found to be inconsistent with
the
Constitution. Section 172(1)(a) of the Constitution demands that
this Court declare invalid a law that is inconsistent with
the
Constitution. Section 172(1)(b)(ii) however confers a discretion on
this Court to make an order that is just and equitable
including an
order suspending the declaration of invalidity for any period and on
any condition, to allow the competent authority
to correct the
defect. The respondents gave no reason or no cogent reason for this
Court to exercise its discretion and suspend
an order of invalidity.
Furthermore, regulation 2(1)(c) which imposes one of the conditions
on the institution of an action for
the recovery of a debt, is in my
view not necessary for the furthering of the objects of the
legislation as a whole. The provision
must be struck down or severed
from the other provisions in regulation 2(1). The legislature is at
liberty, if so advised, to respond
by amending the statute and
substituting an alternative which will be constitutional.
[45]
Section 172(1)(b)(i) provides:
“
When
deciding a constitutional matter within its power a court – may
make any order that is just and equitable, – including
an order
limiting the retrospective effect of the declaration of invalidity.”
What is implied in this provision is that a declaration of
invalidity has retrospective effect but a competent court has a
discretion
to make an order that is just and equitable, limiting the
retrospective effect of an order of invalidity. This Court in
S v
Bhulwana
;
S v Gwadiso
36
held that “as a general principle . . . an order of invalidity
should have no effect on cases which have been finalised prior
to
the date of the order of invalidity.” That principle was
apparently applied in
Mohlomi
37
and there is no reason not to apply it in this matter.
Costs
[46] I find no good reason to depart from the general rule that
costs must follow the result.
Order
[47] In the result the following order is made:
The application for leave to appeal is granted.
The appeal is upheld with costs including the costs of two
counsel.
(i) Regulation 2(1)(c) of the regulations made in terms of
section 26
of the
Road Accident Fund Act 56 of 1996
, published in
Government Gazette 17939 of 25 April 1997, is declared to be
inconsistent with section 34 of the Constitution
and accordingly
invalid.
Such declaration of invalidity will apply to and govern all claims
instituted or to be instituted under the
Road Accident Fund Act, 56
of 1996
, which at the date of this order have neither prescribed,
nor been finally determined by judgments at first instance or on
appeal
or by settlement duly concluded.
The order of the High Court is set aside and replaced with the
following:
The special plea is dismissed with costs including the costs
consequent upon the employment of two counsel.
The present case is remitted to the Cape High Court for the
determination of the claim.
Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, O’Regan
J, Sachs J, Van Heerden AJ, Van der Westhuizen J and Yacoob
J concur
in the judgment of Kondile AJ.
For
the Applicants: Advocate JC Heunis SC and Advocate W de Haan
instructed by Smit Kruger Inc.
For the First Respondent: Advocate R Stockwell SC and Advocate T
Motau instructed by Lindsay Keller & Partners.
For the Second Respondent: Advocate J Whitehead SC and Advocate N
Bawa instructed by The State Attorney, Johannesburg.
1
GN
17939, 25 April 1997.
2
Sections
2 and 3 of the Act.
3
Engelbrecht
v The Road Accident Fund and Another
(“
Engelbrecht
HC
”
),
case no
3701/2003,
2 August 2006,
unreported,
at para 53.
4
Road
Accident Fund v Smith
2007
(1) SA 172
(SCA);
Road
Accident Fund v Makwetlane
2005
(4) SA 51
(SCA);
Road
Accident Fund v Thugwana
2004
(3) SA 169
(SCA);
Strauss
v Road Accident Fund
2006
(1) SA 70
(T);
Mawethu
v Road Accident Fund
2005
(6) SA 485
(W);
Makwetlane
v Road Accident Fund
2003
(3) SA 439
(W);
Thugwana
v Padongelukfonds
2003
(1) SA 310 (T).
5
Makwetlane
SCA
above
n 4.
6
Id
at para 22.
7
Id
at paras 45-47.
8
Engelbrecht
HC
above
n 3 at para 32.
9
Makwetlane
SCA
above
n 4 at paras 43 and 46
.
10
1951
(2) SA 353
(A) at 364.
11
Section
14 of the Motor Vehicle Insurance Act 29 of 1942 provided:
“
When a registered company has
paid any compensation . . . it may, without having obtained a formal
cession of the right of action,
recover from . . . the owner of the
insured motor vehicle in question . . . so much of the amount paid
by way of compensation as
the third party . . . could . . . have
recovered from the person whose negligence or other unlawful act
caused the loss or damage,
if the registered company had not paid
any such compensation.”
12
1938
AD 584
at 592.
13
In
terms of the definitions in the Prescription Act 18 of 1943,
“‘debtor’ means a person against whom a right is enforceable
by action.”
14
Makwetlane
SCA
above
n 4 at paras 43 and 45.
15
Smith
above
n 4.
16
Id
at paras 5-6.
17
Aetna
Insurance Co v Minister of Justice
1960
(3) SA 273
(A) at 285E-F.
18
Section
16(1) of the Prescription Act provides that:
“
Subject to the provisions of
subsection (2)(b), the provisions of this chapter shall, 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, apply to any debt arising after the commencement
of this
Act.” (Emphasis added.)
19
Section
3 of the Act provides that “[t]he object of the Fund shall be the
payment of compensation in accordance with this Act
for loss or
damage wrongfully caused by the driving of motor vehicles.” See
also
President
Insurance Co Ltd v Yu Kwam
1963
(3) SA 766
(A) at 777D-E;
Moloi
and Others v Road Accident Fund
[2000] ZASCA 144
;
2001
(3) SA 546
(SCA) at paras 23-27.
20
Makwetlane
above
n 4 at
para
12.
21
Bennion
Statutory
Interpretation
3
ed (Butterworths, London 1997) at 189.
22
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 58.
23
Thugwana
SCA
above
n 4 at para 11.
24
Smith
above
n 4 at para 7.
25
Bezuidenhout
v AA Mutual Insurance Association Ltd
1978
(1) SA 703
(A) at 709H-710A.
26
Moise
v Greater Germiston Transitional Local Council: Minister of Justice
and Constitutional Development intervening
(
Women’s
Legal Centre as
Amicus
Curiae) 2001 (4) SA 491 (CC);
2001
(8) BCLR 765 (CC)
.
27
Id
at para 23.
28
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC);
1996
(12) BCLR 1559
(CC)
at
para 14.
29
Id
at n 28 at para 31.
30
Thugwana
SCA
above
n 4 at para 16.
31
Makwetlane
SCA
above
n 4 at para 45.
32
Thugwana
SCA
above
n 4
at
para 7.
33
Mohlomi
above
n 28 at para 24.
34
Compare
paras 209 and 210 in
S
v Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC);
1995
(6) BCLR 665
(CC)
.
35
Mohlomi
above
n 28 at para 12.
36
[1995] ZACC 11
;
1996
(1) SA 388
(CC);
1995
(12) BCLR 1579
(CC)
at
para 32.
37
Mohlomi
above
n 28 at para 25.