Law Society of South Africa and Others v Minister for Transport and Another (CCT 38/10) [2010] ZACC 25; 2011 (1) SA 400 (CC) ; 2011 (2) BCLR 150 (CC) (25 November 2010)

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[2010] ZACC 25
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Law Society of South Africa and Others v Minister for Transport and Another (CCT 38/10) [2010] ZACC 25; 2011 (1) SA 400 (CC) ; 2011 (2) BCLR 150 (CC) (25 November 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 38/10
[2010]
ZACC 25
In
the matter between:
LAW
SOCIETY OF SOUTH AFRICA
…...................................................
First
Applicant
SOUTH
AFRICAN ASSOCIATION OF PERSONAL
INJURY
LAWYERS
…...........................................................................
Second
Applicant
QUADPARA
ASSOCIATION OF SOUTH AFRICA
…...........................
Third
Applicant
NATIONAL
COUNCIL FOR PERSONS WITH
PHYSICAL
DISABILITIES IN SOUTH AFRICA
…..............................
Fourth
Applicant
NONTLE
JENNICA WILLEM
…...............................................................
Fifth
Applicant
BELINDA
FLANAGAN
….........................................................................
Sixth
Applicant
LISHA
GOVENDER
…..........................................................................
Seventh
Applicant
JOHN
QONDILE NTSHIZA
…................................................................
Eighth
Applicant
MCEBISI
DAKELA
…...............................................................................
Ninth
Applicant
JERONICO
MERVYN JANSEN
…...........................................................
Tenth
Applicant
DIVAN
GERBER
…..............................................................................
Eleventh
Applicant
and
MINISTER
FOR TRANSPORT
…...........................................................
First
Respondent
ROAD
ACCIDENT FUND
…..............................................................
Second
Respondent
Heard
on : 12 August 2010
Decided
on : 25 November 2010
JUDGMENT
MOSENEKE
DCJ:
Introduction
This
is an application for leave to appeal against the judgment and
order of the North Gauteng High Court
1
(High Court), handed down by Fabricius AJ. That
court dismissed a constitutional challenge to amendments to the
Road Accident Fund Act, 1996
2
(RAF Act). The impugned amending provisions were
introduced by the
Road Accident Fund Amendment Act, 2005
3
(amendment).
Before
the High Court, the applicants put up a far-reaching constitutional
attack against certain provisions of the amendment
and regulations
made under it. They sought to have at least five legislative
provisions, 25 regulations and one government
notice declared
inconsistent with the Constitution and invalid. The High Court
dismissed all these claims but made no order
as to costs.
However,
in the application for leave to appeal directly to this Court, the
scope of the constitutional challenge has shrunk
considerably. The
applicants impugn only two provisions of the amendment and one
regulation. They are—
section
21 which abolishes a motor accident victim’s common law right
to claim compensation from a wrongdoer for losses
which are not
compensable under the RAF Act;
section
17(4)(c) which limits the amount of compensation that the Road
Accident Fund (Fund) is obliged to pay for claims for
loss of
income or a dependant’s loss of support arising from the
bodily injury or death of a victim of a motor accident;
and
Regulation
5(1) in which the Minister for Transport (Minister) has, pursuant
to section 17(4B)(a) of the Act, prescribed tariffs
for health
services which are to be provided to accident victims by public
health establishments.
The
core of the constitutional challenge is that these impugned
provisions viewed alone or collectively as part of the legislative

scheme—
do
not comply with the constitutional principle of rationality;
unjustifiably limit at least one of the
following fundamental rights: the right
—
to security of the person (section 12(1));
not to be deprived of property arbitrarily (section 25(1));
of access to healthcare services (section 27(1)); and
to adequate remedy (section 38).
All these rights are to be viewed in the light of the duty of the
state to respect, protect, promote and fulfil these rights
(section
7(2)).
Parties
Before
identifying the issues that fall to be determined, it may be
helpful that I give a brief description of the litigants.
The Law
Society of South Africa (Law Society) is the first applicant. It
represents some 20 000 attorneys in over 9000 law
firms. Many of
its members practice in the area of road accident litigation and
represent the majority of people who claim
compensation under the
RAF Act. They make the point that their members and their clients
are adversely affected by the impugned
provisions. The Law Society
also says that it pursues the litigation on behalf of many clients
to whom their members provide
services and who could not bring the
proceeding themselves. They also claim to bring the action in the
public interest in order
to procure a just and equitable legal
system. The second applicant is the South African Association of
Personal Injury Lawyers.
Its objectives also include protecting the
legal rights and interests of road accident victims. Its members
too represent victims
of motor vehicle accidents, on whose behalf
they act.
The
third applicant is the QuadPara Association of South Africa. It
promotes the interests of quadriplegics, paraplegics and
other
people with mobility impairment, many of whom incur these
conditions as a result of road accidents. Cited as the fourth

applicant is the National Council for Persons with Physical
Disabilities in South Africa, whose main purpose is to advance
the
interests of persons with physical disability and to eradicate
legal impediments operating to the detriment of its members
or
people with physical disability.
The
first to the fourth applicants are voluntary associations with
perpetual succession. All four have the capacity to institute
legal
proceedings in their own name and have mounted the present
challenge in their own right, on behalf of their members and
to
advance the rights and interests of future accident victims and in
the public interest.
The
fifth to the eleventh applicants are individuals who have been
injured in road accidents after the impugned provisions came
into
operation. All of them assert that they will be materially
prejudiced should the provisions remain in force because they

deprive accident victims of adequate compensation from the Fund
whilst granting wrongdoers complete immunity from civil liability

for their unlawful conduct.
The
first respondent is the national Minister for Transport. He is
cited as the member of the national executive responsible
for the
administration of the RAF Act. He thus has a direct and substantial
interest in the outcome of the appeal. The second
respondent is the
Fund. It is the statutory body established under the RAF Act to
administer the compensation system envisioned
by national
legislation.
Issues
It
may be readily gathered from the preceding introduction that these
issues arise for decision
—
whether
it is in the interests of justice to grant the application for
leave to appeal directly to this Court;
whether
the scheme of the amendment or each of the impugned provisions
complies with the requirement of rationality;
whether
section 12(1)(c) of the Constitution applies to and protects the
physical integrity of road accident victims;
if
it does, whether the right has been unjustifiably limited;
whether
section 25(1) of the Constitution applies to a claim for loss of
earning capacity or of a dependant’s support;
if
it does, whether the right has been unjustifiably limited;
whether
the tariff of health care services the Minister has prescribed
under Regulation 5(1) limits the right of access to health
care
services required by sections 27(1)(a) and (2) of the Constitution;
if
it does, whether the right has been unjustifiably restricted;
whether
the impugned provisions of the amendment infringe the right to
appropriate relief provided for in section 38 of the
Constitution;
what
is the appropriate remedy, if any; and
what
costs order should be made?
Should
leave to appeal be granted?
In
Union of Refugee Women v Director: Private Security Industry
Regulatory Authority,
we restated the considerations that are
relevant for deciding whether to grant leave to appeal to this
Court directly from
the High Court:
“
Leave
to appeal directly to this Court will be granted if it is in the
interests of justice to do so. Each case is considered
on its own
merits. The factors relevant to a decision whether to grant an
application for direct appeal have been listed as including
whether
there are only constitutional issues involved, the importance of the
constitutional issues, the saving in time and costs,
the urgency, if
any, in having a final determination of the matters in issue and the
prospects of success. These must be balanced
against the
disadvantages to the management of the Court’s roll and to the
ultimate decision of the case if the Supreme
Court of Appeal (SCA)
is bypassed.”
4
(Footnotes
omitted.)
With
these considerations in mind, I am satisfied that the application
for leave to appeal should be granted. This matter raises
two main
constitutional issues. The first relates to the rationality of the
scheme of the RAF Act as amended. The threshold
requirement of
rationality to which all legislation must conform is an incident of
the rule of law, a founding value of our
Constitution. The second
constitutional issue concerns the claim that the challenged
provisions of the RAF Act infringe four
specified rights provided
for in the Bill of Rights.
In
my view, the public interest and thus the interests of justice
require that the constitutionality of the legislative scheme
be
definitively considered by this Court at the earliest opportunity.
The Fund, correctly so, does not oppose this Court hearing
the
appeal and in fact abides the Court’s decision on whether
leave to appeal should be granted. The Minister opposes
leave to
appeal being granted on the narrow ground that the applicants seek
to appeal directly to this Court when they should
have first
approached the Supreme Court of Appeal. He takes the view that this
matter concerns the development of the common
law.
It
is true that ordinarily, when a matter concerns the adaptation of
the common law, this Court is reluctant to bypass the Supreme
Court
of Appeal and sit as a court of first and final appeal without the
benefit of its expertise in this area of the law.
5
However, this appeal does not relate to the
development of the common law. It concerns, and only in part, the
constitutional
validity of the statutory abolition of common law
claims of an accident victim against a wrongdoer to the extent that
the Fund
is not liable to compensate the victim. Even in that
regard, we are called upon to determine whether the abolition
unjustifiably
infringes constitutional rights. Thus, the core task
before us is to test whether the amendment passes constitutional
muster.
The rest of the challenges to the amendment are unrelated
to the common law.
There
are indeed other weighty considerations which favour this Court
hearing a direct appeal from the High Court. We are informed
that
some 20 000 claims arise each month under the RAF Act. Many victims
are poor and all are disadvantaged by the current
uncertainty on
what they may properly claim. I can find no cogent reason why it
would be in the interests of justice for this
legal uncertainty to
be endured because of lingering litigation. What is indeed in the
interests of justice is to decide promptly
the constitutional
validity of the amendment. A speedy decision would let victims or
claimants know what may be due to them;
the Fund would anticipate
the likely extent of its liability for claims and the Minister
would be informed of the constitutional
defects, if any, that call
for remedial action.
Lastly,
it should suffice to add that the challenge the applicants put up
raises important constitutional issues and some do
indeed carry a
reasonable prospect that this Court might reach a conclusion
different from that of the High Court. It is indeed
in the
interests of justice that we hear the appeal.
Legislative
history
The
statutory road accident compensation scheme was introduced only in
1942, well after the advent of motor vehicles on public
roads. And
even so, it came into effect only on 1 May 1946. As elsewhere in
the world, statutory intervention to regulate compensation
for loss
spawned by road accidents became necessary because of an increasing
number of motor vehicles and the resultant deaths
and bodily
injuries on public roads. The right of recourse under the common
law proved to be of limited avail. The system of
recovery was
individualistic, slow, expensive and often led to uncertain
outcomes. In many instances, successful claimants
were unable to
receive compensation from wrongdoers who had no means to make good
their debts. On the other hand, it exposed
drivers of motor
vehicles to grave financial risk. It seems plain that the scheme
arose out of the social responsibility of
the state. In effect, it
was, and indeed still remains, part of the social security net for
all road users and their dependants.
Ever
since, the system of compensation has been under frequent
investigation and legislative review. This became necessary
presumably because the scheme was considered to be ever evolving
and less than perfect. In an apparent search for a fair, efficient

and sustainable system of compensation, no less than five principal
Acts were passed and over decades government established
at least
nine commissions to review the funding, management and levels of
compensation under the scheme.
The
first principal Act was the Motor Vehicle Insurance Act, 1942
6
which unsurprisingly was amended at least five
times and was the subject of no fewer than four commissions of
inquiry.
7
That legislation introduced a comprehensive
scheme of compulsory third party motor insurance. Its expressed
object was to provide
for compensation for certain loss or damage
caused unlawfully by means of motor vehicles. The scheme was
originally underwritten
and administered by a consortium of private
insurance companies and funded by compulsory annual premiums
payable by motorists.
8
Nearly
30 years later, the second principal Act, the Compulsory Motor
Vehicle Insurance Act, 1972
9
was adopted. It was amended on at least seven
occasions before its repeal in 1986.
10
This Act shifted the requirement for insurance
from the owner or driver to the vehicle itself. It provided cover,
for the first
time, for loss occasioned by uninsured or
unidentified motor vehicles. It introduced prescription of claims
and excluded the
liability of the Fund in certain instances and
increased the benefits for passengers. It too was the subject of at
least two
commissions of inquiry.
11
Some
14 years later, the third principal Act, the Motor Vehicle
Accidents (MVA) Act, 1986
12
was passed. The important change it introduced
was a fuel levy to fund the system of compensation. Another
significant change
was that private insurance agents ceased to deal
with hit and run claims. These were dealt with exclusively by the
MVA Fund.
This principal Act too was the subject of at least one
commission of inquiry.
13
Only 3 years later in 1989, the fourth principal
Act, the Multilateral Motor Vehicle Accidents Fund Act, 1989
14
came into force. It too was amended at least
four times.
15
The Melamet Commission of Inquiry of 1992 was
appointed in the wake of an actuarial deficit of the Fund that was
estimated at
R1 billion. The Commission found widespread
inefficiencies in the system. It highlighted specific areas of
abuse which included
unnecessary delays by attorneys in lodging
claims, overstated or fraudulent claims and inflated legal costs.
The Commission
recommended a number of internal administrative
changes but stopped short of recommending a no-fault benefit
system. And lastly,
the fifth principal Act is the
Road Accident
Fund Act, 1996
which is still in force. It has been amended five
times,
16
and has been subject of one major commission
known as the Satchwell Commission which made many far-reaching
recommendations.
17
The fourth of the amendments only took effect in
2008.
18
It is this amendment which is the target of the
present constitutional challenge. It is now convenient that I
describe its salient
features.
The
scheme of the amendment
Prior
to its substitution by
section 9
of the amendment, section 21 of
the RAF Act read as follows:
“
When
a third party is entitled under section 17 to claim from the Fund or
an agent any compensation in respect of any loss or
damage resulting
from any bodily injury to or death of any person caused by or
arising from the driving of a motor vehicle by
the owner thereof or
by any other person with the consent of the owner, that third party
may not claim compensation in respect
of that loss or damage from
the owner or from the person who so drove the vehicle, or if that
person drove the vehicle as an
employee in the performance of his or
her duties, from his or her employer, unless the Fund or such agent
is unable to pay the
compensation.”
In
its amended form, section 21 now reads:
“
(1)
No claim for compensation in respect of loss or damage resulting
from the bodily injury to or the death of any person caused
by or
arising from the driving of a motor vehicle shall lie—
against the owner or driver of
a motor vehicle; or
against the employer of the
driver.
(2) Subsection (1) does not
apply—
if the Fund or an agent is
unable to pay any compensation; or
to an action for compensation
in respect of loss or damage resulting from emotional shock
sustained by a person, other than
a third party, when that person
witnessed or observed or was informed of the bodily injury or the
death of another person as
a result of the driving of a motor
vehicle.”
The
scheme brought into being by the amendment is not fully apparent
from a mere comparison of the two sections. It becomes
clearer when
one has regard to the limited compensation to accident victims
which the amended provisions of section 17 of the
RAF Act
introduce. In relevant parts, the section reads as follows:
“
(1)
The Fund or an agent shall—
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;
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: Provided
that the obligation of the Fund to compensate a third party for
non-pecuniary loss shall be limited
to compensation for a serious
injury as contemplated in subsection (1A) and shall be paid by way
of a lump sum.
(1A) (a)
Assessment of a serious injury shall be based on a prescribed method
adopted after consultation with the medical service
providers and
shall be
reasonable
in ensuring that
injuries are assessed in relation to the circumstances of the third
party.
(b) The assessment shall be
carried out by a medical practitioner registered as such under the
Health Professions Act, 1974 (Act
No. 56 of 1974).
. . . .
(4) Where a claim for
compensation under subsection (1)—
includes a claim for the costs
of the future accommodation of any person in a hospital or nursing
home or treatment of or rendering
of a service or supplying of
goods to him or her, the Fund or an agent shall be entitled, after
furnishing the third party
concerned with an undertaking to that
effect or a competent court has directed the Fund or an agent to
furnish such undertaking,
to compensate—
the third party in respect of
the said costs after the costs have been incurred and on proof
thereof; or
the provider of such service
or treatment directly, notwithstanding section 19(c) or (d),
in accordance with the tariff
contemplated in subsection (4B);
includes a claim for future
loss of income or support, the amount payable by the Fund or the
agent shall be paid by way of a
lump sum or in instalments as
agreed upon;
includes a claim for loss of
income or support, the annual loss, irrespective of the actual
loss, shall be proportionately calculated
to an amount not
exceeding—
R182 047 per year in the case
of a claim for loss of income; and
(ii) R182 047 per year, in
respect of each deceased breadwinner, in the case of a claim for
loss of support.
(4A) (a) The Fund shall, by
notice in the Gazette, adjust the amounts referred to in subsection
(4)(c) quarterly, in order to
counter the effect of inflation.
In respect of any claim for
loss of income or support the amounts adjusted in terms of
paragraph (a) shall be the amounts set
out in the last notice
issued prior to the date on which the cause of action arose.
(4B) (a) The liability of the
Fund or an agent regarding any tariff contemplated in sub-section
(4)(a), (5) and (6) shall be based
on the tariffs for health
services provided by public health establishments contemplated in
the National Health Act, 2003 (Act
No. 61 of 2003), and shall be
prescribed after consultation with the Minister of Health.
(b) The tariff for emergency
medical treatment provided by a health care provider contemplated in
the
National Health Act, 2003
—
shall be negotiated between
the Fund and such health care providers; and
shall be reasonable taking
into account factors such as the cost of such treatment and the
ability of the Fund to pay.
In the
absence of a tariff for emergency medical treatment the tariff
contemplated in paragraph (a) shall apply.”
19
The
amendment has retained several features of the old scheme and
introduced far-reaching new features. Firstly, the scheme
insures
road users against the risk of personal injury and their dependants
against the risk of their death caused by the fault
of another
driver or motorist. It has retained the underlying common law
fault-based liability. This means that any accident
victim or a
third party who seeks to recover compensation must establish the
normal delictual elements. The claimant must show
that he or she
has suffered loss or damage as a result of personal bodily injury
or the injury or death of a breadwinner arising
from the driving of
a motor vehicle in a manner which was wrongful and coupled with
negligence or intent.
Before
the amendment,
section 21
provided clearly that a victim or third
party may not claim compensation from the owner or driver of the
vehicle or from the
employer of the driver when he or she is
entitled to claim from the Fund or an agent. To that extent only
did a wrongdoer enjoy
immunity. This meant that where no claim lay
against the Fund or an agent, a third party retained the common law
residual claim
to recover losses not recompensable under the RAF
Act from a wrongdoer. However, the amended section 21 of the RAF
Act abolishes
this common law right. In plain language it provides
that no claim for compensation arising from the driving of a motor
vehicle
shall lie against the owner or driver of a motor vehicle or
against an employer of the driver. To this immunity from liability

there are two exceptions. The one is if the Fund is unable to pay
any compensation. The second is when the action for compensation
is
in respect of loss or damage resulting from emotional shock
sustained by a person other than a third party. The emotional
shock
must have arisen when the claimant witnessed, or observed or was
informed of the bodily injury to or death of another
person as a
result of a motor collision.
Prior
to its amendment section 17 obliged the Fund to compensate a third
party in full for any loss or damage caused by or arising
from the
driving of a motor vehicle by another person. Except for passengers
injured as a result of the negligent driving of
a motor vehicle in
which they were being conveyed, a third party was entitled to be
compensated by the Fund in full. The liability
of the Fund to a
third party was thus unlimited. The amended section 17 limits the
obligation of the Fund to compensate a third
party in a number of
material respects. These are:
Non-pecuniary
loss which is also referred to as general damages is limited to
compensation for “serious injury”
and shall be paid
once off by way of a lump sum. What constitutes serious injury
shall be assessed by a medical practitioner
based on a prescribed
method adopted after consultation with medical service providers.
However, the injury must be reasonably
assessed in relation to the
circumstances of the third party.
Pecuniary
damages, sometimes called special damages, are restricted in two
important ways. First, compensation for loss of earning
or of
support falls to be calculated, irrespective of actual loss, on the
basis of a maximum annual income which is currently
set at R182 047
per year. The Fund is obliged to adjust the amount for the
calculation of loss of income or support quarterly
in order to
counter the effect of inflation and the adjusted amount for
purposes of the calculation is the one appearing in
the last notice
of adjustment issued before the date on which the cause of action
arose.
20
Second,
the Fund’s liability to accident victims for costs of medical
and healthcare services must be based on tariffs
for health
services provided by the public health establishment contemplated
in the
National Health Act, 2003
.
21
The applicable tariff must be prescribed by the
Minister after consultation with the Minister for Health.
22
The Minister has by regulation prescribed a
tariff identical to the Uniform Patient Fee Schedule (UPFS) in
Regulation 5(1).
23
Before
I turn to the constitutional attacks mounted, there is one more
change to the old scheme that requires mention. As we
have seen, as
a general matter, third party claimants under the old scheme were
entitled to recover unlimited compensation
from the Fund. The
passenger claims were a prominent exception to the uncapped
liability. They were limited in terms of sections
18
24
and 19(b)
25
of the RAF Act. These provisions imposed
different caps on the compensation paid to different categories of
passengers, ranging
from complete exclusion to a maximum of R25
000.
26
The amendment has removed the caps by repealing
relevant parts of sections 18 and 19(b). This, of course, means
that passengers
whose claims were limited in the past, now stand to
be recompensed on the same basis as all other victims.
Is the
scheme rational?
The
Law Society together with the third to the eleventh applicants
contends that the new scheme and in particular the abolition
of the
common law claim is irrational. They urge us to go beyond the
rational connection test between means and ends when testing
the
rationality of a legislative measure and to embrace a standard of
wider import that would ask not only whether the impugned

legislative measure discriminates arbitrarily but also whether it
“unfairly deprive[s] people of constitutional protection”.

Drawing on Thayer’s theory first articulated in 1893,
27
the applicants contend that in circumstances
where a legislative scheme “drops a guillotine on
constitutional rights”
(as in the present case where the
right to physical integrity, property, access to health care and to
an appropriate remedy
are threatened), a court must ask whether the
measure “unfairly deprive[s] people of constitutional
protection”
or, put differently, whether it abolishes
individual rights.
Accordingly,
“the true rationality test”, applicants contend, does
not lead to declarations of constitutional validity
where the
scheme is “substantively unjust”. And the scheme’s
substantive justness involves more than the
“counting of
straws” – more than merely listing, as the Minister has
done in this case, reasons for adopting
the scheme. Whilst the test
is not one of proportionality, a court must evaluate the reasons,
lest the principle of legality,
as they put it, “should
suffer by putting form over substance or the quantity of reasons
over the quality of the reasoning.”
Thus in evaluating the
rationale for a chosen policy, goes the argument, the court must
engage with the evidence as in all
disputes; it must evaluate the
bases on which the impugned provision is sought to be justified as
rational.
Having
formulated an expanded test, the applicants go on to measure the
impugned scheme against that test and conclude that
the new scheme
is irrational because it unfairly deprives constitutional
protection and is substantively unfair.
A
convenient starting point in evaluating these submissions is to
restate, albeit tersely, the rationality standard that may
be
culled from the decisions of this Court. The constitutional
requirement of rationality is an incident of the rule of law,
which
in turn is a founding value of our Constitution.
28
The rule of law requires that all public power
must be sourced in law.
29
This means that state actors exercise public
power within the formal bounds of the law. Thus, when making laws,
the legislature
is constrained to act rationally. It may not act
capriciously or arbitrarily.
30
It must only act to achieve a legitimate
government purpose. Thus, there must be a rational nexus between
the legislative scheme
and the pursuit of a legitimate government
purpose
.
The
requirement is meant “to promote the need for governmental
action to relate to a defensible vision of the public good”

and “to enhance the coherence and integrity” of
legislative measures.
31
A
decision whether a legislative provision or scheme is rationally
related to a given governmental object entails an objective

enquiry.
32
The test is objective because:
“
Otherwise
a decision that, viewed objectively, is in fact irrational, might
pass muster simply because the person who took it
mistakenly and in
good faith believed it to be rational. Such a conclusion would place
form above substance and undermine an
important constitutional
principle.”
33
It
is by now well settled that where a legislative measure is
challenged on the ground that it is not rational, the court must

examine the means chosen in order to decide whether they are
rationally related to the public good sought to be achieved.
34
It
remains to be said that the requirement of rationality is not
directed at testing whether legislation is fair or reasonable
or
appropriate. Nor is it aimed at deciding whether there are other or
even better means that could have been used. Its use
is restricted
to the threshold question whether the measure the lawgiver has
chosen is properly related to the public good
it seeks to realise.
If the measure fails on this count, that is indeed the end of the
enquiry. The measure falls to be struck
down as constitutionally
bad.
Unlike
many other written constitutions, our supreme law provides for
rigorous judicial scrutiny of statutes which are challenged
for the
reason that they infringe fundamental rights. That scrutiny is
accomplished, not by resorting to the rationality standard,
but by
means of a proportionality analysis. Our Constitution instructs
that no law may limit a fundamental right except if
it is of
general application and the limitation is reasonable and
justifiable in an open and democratic society.
A
rights limitation analysis is wide ranging. Courts take into
account all relevant factors that go to justification of the

limitation. The enquiry is not restricted to the factors listed
under section 36(1) of the Constitution. All factors relevant
to
that particular limitation analysis may be taken into account in
reaching a decision whether the limitation on a fundamental
right
is constitutionally tolerable or not. It is significant that one of
the relevant factors listed in section 36 is the
“relation
between the limitation and its purpose”.
35
This is so because the requirement of
rationality is indeed a logical part of the proportionality test.
It is self-evident that
a measure which is irrational could hardly
pass muster as reasonable and justifiable for purposes of
restricting a fundamental
right. Equally so, a law may be
rationally related to the end it is meant to pursue and yet fail to
pass muster under the rights
limitation analysis.
I
return to the applicants’ request that this Court adapt the
rationality standard to apply also when a legislative measure

unfairly deprives people of constitutional protection or is
substantively unjust. This invitation should be declined. Our
supreme law protects fundamental rights adequately. No legislative
measure may limit an entrenched right except in the manner

permitted by our supreme law. It is accordingly unnecessary to
deploy the rationality standard to provide constitutional

protection which section 36 already provides. Where an applicant
complains that specific entrenched rights are infringed by a
law,
the real question to be asked is whether the restriction, if found
to exist, is reasonable and justifiable. It is accordingly

inappropriate to transplant Prof. Thayer’s notion of
rationality as the only “true rationality test” for

judicial review of legislation into our jurisprudence when
rationality is a mere threshold requirement for the exercise of
all
public power.
The
applicants further urged us to incorporate fairness as an element
of rationality. Again, the applicants conflate the rationality
and
proportionality standards of review. I have already remarked that
fairness is not a requirement in the rationality enquiry.
If the
substance of the complaint is about the deprivation of fundamental
rights, it would be subject to the proportionality
requirements of
section 36 and not of mere rationality.
The
rationale for the abolition of the common law claim
We
have described in some detail the legislative provisions that end
the residual common law claim of an accident victim against
a
wrongdoer and replace it with a scheme that caps compensation
payable by the Fund.
36
The applicants charge that by abolishing the
residual claim, the new scheme is a radical departure from the
avowed purpose of
this class of social security legislation which
is to provide, as judicial precedent suggests, the fullest possible
protection
to victims of road accidents.
37
They assert that the premise of the new scheme
is to confer immunity on negligent drivers against all residual
common law claims
by their innocent victims who are now
under-compensated because the scheme has arbitrarily capped their
claims. The applicants
argue that the rationale offered by the
Minister for abolishing the common law claim does not withstand
rational scrutiny.
It is thus necessary to describe briefly the
purpose of the scheme advanced by the Minister.
The
Minister, in a deposition made on his behalf by Ms MC Koorts, the
Deputy Director-General: Public Entity Oversight of the
Department
of Transport, states that the roots of the 2005 amendment are to be
found in the early 1990s. He explains that the
legislative changes
were made necessary by an ever-growing funding deficit of accident
claims and, after 1994, also by the
constitutional obligation to
remove arbitrary forms of differentiation in the compensation of
accident victims. He says that
for decades the Fund was not fully
funded. The income derived from the levy charged motorists on the
fuel they purchase
38
did not match the liability which the Fund
incurred year after year. This remained so despite the rapid
increase of the fuel
levy from two cents per litre in 1988
39
to 72 cents per litre presently.
40
For instance, for the five year period from 1985
to 1989 the funding deficit as seen against the value of proven
claims ran
to R906 million. From 1990 to 1995 the funding deficit
rose to nearly R4.2 billion and by the end of 1996 it stood at
R6.347
billion. In an affidavit filed on behalf of the Minister for
Finance, we are informed that the accumulated deficit stood at

R39.964 billion in 2009.
41
In effect, the Fund, he says, was doing business
whilst technically insolvent.
The
Minister tabulates the sources of the envisaged interim financial
savings. Firstly, the removed cap of R25 000 on the compensation
to
be paid to different categories of passengers is expected to lead
to an increase in the compensation paid under the scheme
by 15%.
Although no saving is expected in relation to passenger victims,
their claims too will be capped in the same way as
all other
accident victims. However, new caps on the claims for loss of
income and support would result in a saving of only
1% to 3% of the
Fund’s total liability. The biggest savings likely to reduce
the growing deficit would be derived from
savings related to
general damages being paid only to victims who suffer “serious
injury”. It is expected that
this reform would reduce
compensation by between 35.8% and 39%. Lastly, the compensation for
medical expenses if based on the
National Health Reference Price
List
42
(NHRPL) for emergency medical treatment and the
new UPFS tariff for other medical treatment, would bring about a
saving of between
2% and 6% of compensation payable.
Another
big cost saving, according to the Minister, will be derived from
the reduced cost of administering the scheme. We are
informed that
the Fund’s administrative costs are 44% of the total
compensation paid. They include legal costs of about
R2.5 billion
made up of the Fund’s own legal costs of about R900 million
and its contribution to claimants’ legal
costs of about R1.6
billion. The party and party portion of the claimants’ legal
costs, if added, all amount to a R2.4
billion bill for delivering
the Fund’s services for the year ending 31 March 2009.
The
Minister has furnished two further explanations for the scheme.
First, he states that with the start of constitutional democracy
in
1994, the irrational legislative differentiation between the
compensation due to passengers, on the one hand, and to drivers
and
pedestrians, on the other, became vulnerable to constitutional
challenge. It became necessary to amend the legislation
in order to
give effect to the constitutional requirements regarding (a)
expenditure which is efficient, effective and economical;
(b)
prohibition of irrational differentiation and (c) reasonable access
to social security and health care.
Second,
he explains that whilst the economic viability of the Fund and the
removal of unfair differentiation were important
goals, the
ultimate vision is that the new system of compensation for road
accident victims must be integrated into a comprehensive
social
security system that offers life, disability and health insurance
cover for all accidents and diseases. He acknowledges
that a
fault-based common law system of compensation for road accident
victims would be at odds with a comprehensive social
security
model. The intention is therefore to replace the common law system
of compensation with a set of limited no-fault
benefits which would
form part of a broader social security net as public financial
support for people who are poor, have a
disability or are
vulnerable. He goes on to state that the design of a comprehensive
social security system is complex and
will take time. However,
Cabinet has approved the principle on 18 November 2009 and
published a draft no-fault policy for public
comment and
consultation.
43
He
would have us accept that the new scheme is a first step to greater
reform. It is an interim measure towards the restructuring
of the
Fund’s scheme into one which pays compensation on a no-fault
basis. The new scheme has been adopted as an interim
measure in
order to arrest the ever bulging financial deficit of the Fund
which cannot be adequately funded by constant increases
in the
petrol levy. If the unfunded deficit is left to grow it will, in
time, harm the country’s financial soundness.
The Minister
further explains that the purpose of the scheme is to make the RAF
Act less vulnerable to constitutional challenges
on the ground that
it differentiates unfairly between accident victims and does not
create reasonable access to social security
and health care.
The
question that remains is whether, in the light of the rationale
that the Minister has advanced, the scheme is rational?
The
applicants say that it is not because firstly, the continued
existence of the residual common law claim does not influence
the
financial viability of the scheme whatsoever. On this argument, the
objective of meeting the basic needs of every victim
by making the
scheme fully funded is not furthered by abolishing a residual claim
against the wrongdoer. They contend that
there is no proper
relation between the objects of the scheme and the means it
invokes.
It
cannot be denied that the abolition of the residual common law
claim does not worsen or improve the financial standing of
the
Fund. The damages recoverable through the residual common law claim
and the cost of pursuing it are entirely outside the
funding remit
of the Fund. The party at risk is not the Fund but the negligent
motorist or his or her employer. Thus on the
face of it, it would
not be sufficient to put up the need to reduce the ever growing
deficit of the Fund as the object for
abolishing the common law
claim. This however, is not the end of the matter.
The
scheme must be seen as a whole and not only in the light of the
abolition of the common law claim. A vital part of the project
to
render the scheme sustainable is to place a cap on various heads of
damages and to exclude all claims for general damages
that are not
a result of “serious injury”.
44
The excluded claims for general damages are said
to be 61% of all claims for general damages and would reduce the
compensation
payable by the Fund by well more than a third. This
means that the compensation claimable under the residual common law
action
against motorists would potentially increase in direct
proportion to the level of the caps imposed. With the common law
residual
claim in place and with no legislative indemnity for
negligent motorists, what the Fund would save in monetary terms
because
of capped liability for compensation would in effect have
to be paid by liable motorists. This simply means that negligent

motorists would have to bear the risk of substantially increased
residual claims from accident victims.
The
colossal risk to which the new cap exposes all drivers (from which
the Fund would previously have protected them by paying
full
compensation), as against the relatively small inattentiveness or
oversight that could give rise to the risk, lends further
support
to the abolition of the common law action.
What is more, the
retention of the common law claim does not sit well with a social
security compensation system that aims to
provide equitable
compensation (as distinct from the right to sue for compensation)
for all people regardless of their financial
ability. There are two
aspects to this incongruity. The first is that the common law claim
would be actually recovered only
from those drivers or owners who
are capable of in fact paying compensation or who are able to
afford the required insurance.
In my view, the number of drivers
and owners who would be able to pay would be very small. It would
be pointless for any person
to sue in circumstances where actual
recovery would not result. The second consideration is that the
right to sue would be
available only to those who can afford to pay
legal fees or who are granted legal aid. And it is unlikely that
legal aid would
be granted to people who have claims that are in
fact irrecoverable because of the inability of the driver or owner
to pay.
These two factors would have a negative effect on an
equitable compensation system if the common law right of action
were to
be retained.
Another
relevant factor is that the Minister assures us that the scheme is
transitional and thus an interim measure. It is a
step in the
journey to reform the compensation regime to motor accident
victims. However, it must be said that during the interim
stage,
the obvious soft belly of the scheme is that it is still
fault-based. Whilst recourse to a residual claim is ousted
and
levels of compensation are capped or, in the case of general
damages arising from non-serious bodily injuries, excluded,
claims
of victims are constrained by the requirement of driver negligence.
It seems that the constraint imposed by the fault
requirement
suppresses the quantum of compensation to accident victims. Its
temporary retention serves an obvious role of lowering
the Fund’s
liability to compensate victims.
The
saving grace may be two cardinal considerations. The Minister and
the Fund have made out a compelling case for the urgent
reduction
of the Fund’s unfunded and ballooning liability. Simply put,
urgent steps must be taken to make the Fund sustainable
so that it
can fulfil its constitutional obligations to provide social
security and access to healthcare services. This is
a pressing and
legitimate purpose. The second consideration is that the government
has committed to restructuring the Fund’s
scheme into one
which would pay compensation on a no-fault basis and as part of its
duty to facilitate access to social security
and health care.
45
On the evidence, there is no cause to doubt this
commitment. What remains uncertain is how long the transitional
stage will
last. The applicants have submitted that even a
transitional legislative scheme must pass constitutional muster. It
too must
meet the rationality test. That is undoubtedly correct.
All laws must satisfy constitutional dictates. To meet this
contention,
the Minister has encouraged us to adopt the reasoning
of the Supreme Court of Canada which has held in comparable
circumstances
that when government brings about reform which
entails several steps and involves complex and competing policy
options it must
be permitted to do so in incremental measures and
“be given reasonable leeway to deal with problems one step at
a time.”
46
There
is indeed much to be said for this contention. I have earlier
sketched the history of legislation that regulated third
party
insurance since 1942. It is a tale of numerous commissions of
inquiry and frequent reform involving intricate and competing

policy and legislative options. After more than six decades a fair,
effective and financially viable scheme of compensation
remains
elusive. However, if on all accounts the impugned legislative
scheme is an incremental measure towards reform and is
a rational
step in that direction, the lawmaker should be permitted reasonable
room or leeway to advance the reform. This does
not however mean
that the mere fact that a prevailing system is but a step in the
wake of a wonderful legislative ideal can
for that reason only ever
justify the violation of constitutional rights in the interim.
We
must keep in mind not only the government’s intermediate
purpose in enacting this legislation, but also its long-term

objective. The primary and ultimate mission of the Fund is to
render a fair, self-funding, viable and more effective social

security service to victims of motor accidents. The new scheme is a
significant step in that direction. On all the evidence
it is
clear, and the Minister and the Fund assure us, that the ideal
legislative arrangement should not require fault as a
pre-requisite
for a road accident victim to be entitled to compensation for loss
arising from bodily injury or death caused
by the driving of a
motor vehicle. Therefore, the abolition of the common law claim is
a necessary and rational part of an
interim scheme whose primary
thrust is to achieve financial viability and a more effective and
equitable platform for delivery
of social security services.
On
balance, I am satisfied that the abolition of the common law claim
is rationally related to the legitimate government purpose
to make
the Fund financially viable and its compensation scheme equitable.
It
remains to consider the attack to the scheme based on the Bill of
Rights. This attack was premised on sections 12, 25, 27
and 38,
read together with the duties in section 7(2).
Does
the scheme infringe the right in section 12?
In
this Court, the applicants have submitted that the abolition of the
common law claim infringes the right to be free from
all forms of
violence in terms of section 12(1)(c) read with section 7(2) of the
Constitution. This is not the argument the
applicants presented
before the High Court. In that court, the first four applicants
relied on the provisions of section 12(2)
47
which are directed at protecting bodily and
psychological integrity. To this argument the Minister conceded in
the High Court
that section 12 which protects the freedom and
security of the person read with section 7(2) and section 38 of the
Constitution
means that the state is obliged to afford an
appropriate remedy to victims of motor vehicle accidents who suffer
bodily injury
as a result of someone else’s negligence. The
High Court considered itself not bound by the concession of the
Minister
and concluded that section 12(2) of the Constitution does
not apply nor was it intended to apply to victims of motor vehicle
accidents in the context of the state being obliged to afford an
appropriate remedy to such victims. Given the outcome I reach,
I do
not think that it is necessary to embark on an excursion on the
differences, if any, between section 12(1)(c) and 12(2)
of the
Constitution. I will approach the claim of the applicants on the
basis they have presented it in this Court.
Before
we determine whether the scheme infringes section 12(1)(c), we must
determine its reach, in particular whether it protects
the security
of the person of someone who may be injured or killed as a result
of the negligent driving of a motor vehicle.
Section 12(1) of the
Constitution is directed at protecting the physical integrity of a
person. In its terms, everyone has
the right to “security of
the person”. It is clear from section 12(1)(c) that the
protection includes the right
“to be free from all forms of
violence from either public or private sources”.
48
It seems correct, as some commentators suggest,
that the right is engaged whenever there is an “immediate
threat to life
or physical security” deriving from any
source.
49
Section
12(1)(c) does not have an obvious equivalent in international
conventions. Some commentators suggest that this right
is an
innovation in our Bill of Rights.
50
Woolman
et al
suggest that section 12(1)(c) draws its
inspiration from article 5 of the Convention on the Elimination of
all forms of Racial
Discrimination (CERD).
51
CERD imposes both negative and positive duties
on state parties. The negative obligation entails protecting people
from ‘violence
or bodily harm whether inflicted by government
officials or by any individual, group or institution’.
52
Affirmative obligations require state parties to
prohibit, punish and discourage violence. These positive
obligations require
both legislative and executive action to combat
violence.
53
It must be explained that although the
Convention is directed at racially motivated violence, section
12(1)(c) of the Constitution
aims to put a stop to all forms of
violence that inevitably would violate the security of a person.
Section 12(1)(c) too, requires
the state to protect individuals
both negatively by refraining from such invasion itself and
positively by restraining or discouraging
its functionaries or
officials and private individuals from such invasion.
54
Implicit
in the applicants’ submissions is that violence directed at
victims of motor vehicle accidents violates the integrity
of the
person; that the state has positive and negative obligations to
protect victims and that an abolition of a common law
right to
claim damages arising from motor vehicle accidents amounts to a
breach of this duty. In this Court, the Minister again
concedes
that when someone is injured or killed as a result of the negligent
driving of a motor vehicle, the victim’s
right to security of
the person is infringed by the negligent driver. The Minister also
accepts that the state is obliged,
in terms of section 7(2), to
protect road users against the risk of infringement of this kind.
His attitude parts ways with
that of the applicants’ in
relation to whether the protection the state affords to victims
must include a civil claim
against the wrongdoer for the full
amount of the loss. The Minister accordingly denies that the
amendment breaches the duty
the state has under section 7(2). He
argues that to the contrary the new scheme provides protection to
the security of the
person of road accident victims by creating a
statutory claim.
The
question is whether section 12(1)(c) protects the security of the
person of someone injured or killed as a result of the
negligent
driving of a motor vehicle. The jurisprudence on section 12(1)(c)
has not confronted the kind of duty the state bears
to protect the
bodily integrity of victims of motor vehicle accidents. In
S
v Baloyi
,
55
a case which concerned legislative protection of
a person from domestic violence, this Court described the state’s
duty
in broad, if not open-ended, terms:
“
The
specific inclusion of private sources emphasises that serious
threats to security of the person arise from private sources.
Read
with section 7(2), section 12(1) has to be understood as obliging
the State directly to protect the right of everyone to
be free from
private or domestic violence.”
56
(Footnote
omitted.)
In
Rail Commuters
,
57
this Court was confronted with delictual claims
which arose from the failure of an organ of state to discharge its
constitutionally
mandated duty to prevent violence against
passengers who used its trains. Relying on the duty of the state
organ derived from
section 12(1)(c) read with section 7(2) this
Court outlined the correct approach as follows:
“
The
principle of accountability, therefore, may not always give rise to
a legal duty whether in private or public law. In determining

whether a legal duty exists whether in private or public law,
careful analysis of the relevant constitutional provisions, any

relevant statutory duties and the relevant context will be required.
It will be necessary too to take account of other constitutional

norms, important and relevant ones being the principle of
effectiveness and the need to be responsive to people’s
needs.”
58
(Footnote
omitted.)
The
concession that the Minister has made, is the correct one. A plain
reading of the relevant constitutional provision has
a wide reach.
Section 12(1) confers the right to the security of the person and
freedom from violence on “everyone”.
There is no cogent
reason in logic or in law to limit the remit of this provision by
withholding the protection from victims
of motor vehicle accidents.
When a person is injured or killed as a result of negligent driving
of a motor vehicle the victim’s
right to security of the
person is severely compromised. The state, properly so, recognises
that it bears the obligation to
respect, protect and promote the
freedom from violence from any source.
This
constitutional duty finds echo in an array of measures both
legislative and executive. It is commonplace that statutory
and
common law rules of the road are in great measure directed at
preventing injury and death on the road. Road safety sits
at the
core of most of these protective measures. That explains why their
breach is almost invariably reinforced by criminal
sanction. Ready
examples would be offences related to driving without a valid
licence, roadworthiness of motor vehicles, speeding,
reckless and
negligent driving and driving under the influence of alcohol.
59
Considerable human and other resources are
deployed to administer and enforce rules of the road by dedicated
law enforcement
structures of provincial and local government.
The
Minister, correctly so, draws our attention to other statutory
provisions which ensure that the security of the person of
motor
accident victims is protected. A ready example would be the
constitutional and statutory requirement that no person may
be
refused emergency medical treatment.
60
Although the right is written in negative terms,
at the very least, victims of motor accidents would be entitled not
to be denied
emergency healthcare by a health care provider, health
worker or health establishment. In addition,
section 4
of the
National Health Act requires
the Minister to prescribe categories
of people who are eligible for free non-emergency health services
at public health establishments.
It appears that motor vehicle
accident victims whose medical care is wholly or partially funded
by the Fund are full paying
patients at public health
establishments. That must be so because the Fund would bear the
duty to pay.
The
real question is whether poor motor accident victims who otherwise
qualify for non-emergency health care free of charge
may be denied
it. It seems to me there is no valid reason for reading the
ministerial determination of fees in this narrow
manner that would
deny accident victims access to non-emergency health care, if they
otherwise qualify as impecunious.
61
The state pays grants to disabled people
62
including victims of motor vehicle accidents.
Lastly, it must be added that the RAF Act is itself a social
security measure
directed at protecting the victims of motor
vehicle accidents. It may properly be seen as part of the arsenal
of the state
in fulfilling its constitutional duty to protect the
security of the person of the public and in particular of victims
of road
accidents. Its principal object is to ameliorate the plight
of victims rendered vulnerable by motor accidents. The state may
also respect and protect bodily integrity by creating a statutory
right to compensation in the event of bodily injury or death

arising from a motor collision. In this sense, the impugned
legislation is part of that social security.
For
all these reasons, I conclude that the state incurs section 12
obligations in relation to victims of road accidents.
Has
the abolition of the common law unjustifiably limited section
12(1)(c)?
The
applicants’ argument that by abolishing the common law claim,
the legislature has unjustifiably limited their right
to physical
integrity or freedom from violence, will now be addressed. They say
that the impugned scheme terminates the duty
of the wrongdoer to
recompense the victim and in that way takes away the effectiveness
of the remedy provided for the infringement
of the right to
physical integrity.
First,
the lawgiver has the power to change or adapt the common law
provided that the change is not inconsistent with the Constitution.

Section 39(3) acknowledges the existence of other rights or
freedoms that are recognised or conferred by the common law,

customary law or legislation
63
to the extent that they accord to the supreme
law. This does not mean that the Constitution limits the
legislative power of
Parliament in relation to adapting or
abolishing parts of the common law, indigenous law or of existing
legislation. Whilst
existing rights, whatever their origin, remain
important, it is indeed open to Parliament to adapt or abolish
existing rights
sourced in any existing law provided that in doing
so, it acts within the confines of the Constitution.
It
would be wrong to understand section 39(3) as providing a bulwark
against any adaptation of the common law. If anything,
section
39(2) enjoins courts to develop the common law in line with the
dictates of the Constitution. In practice, courts adapt
and in some
instances abolish the common law, so too indigenous law, in order
to ensure that these sources of law are well
suited to the demands
of our modern times and the normative grid of the Constitution.
It
is open to Parliament, as it is to the courts, to adapt the common
law provided that in that process the Constitution is
not breached.
The ultimate question resolves itself into whether the statutory
abolition of the common law remedy to recover
damages from a
wrongdoer breaches the Constitution.
It
bears repeating that the common law provides a claimant with a
delictual remedy to recover from a wrongdoer damages arising
from
bodily injury or the death of a breadwinner caused by the unlawful
and negligent driving of a motor vehicle. The delictual
remedy
vindicates the right to bodily integrity. The question is whether
the common law delictual remedy also protects and
enforces, in the
language of section 12(1)(c) of the Constitution, the right to the
security of the person which includes the
entitlement to be free
from all forms of violence from either public or private sources.
In
Fose v Minister of Safety and
Security
64
this Court had to decide whether a breach of a
constitutionally entrenched fundamental right may be vindicated by
a delictual
remedy such as an award of damages. In that case, the
applicant contended that he was entitled to a public law remedy of
constitutional
damages and not to a private law remedy of delictual
damages. The contention was that any person who applied to court
for “appropriate
relief” for an infringement of a
fundamental right under the interim Constitution may not resort to
a delictual remedy
because the claimant was entitled only to a
constitutional remedy.
65
The Court held that in principle “appropriate
relief” was relief that was required to protect and enforce
the interim
Constitution and that there was no reason in principle
why “appropriate relief” should not include an award of

damages where such an award was necessary to protect and enforce
constitutionally recognised fundamental rights.
66
The Court observed that our private law of
delict was flexible and that in many cases the common law would be
broad enough to
provide all the relief that would be appropriate
for a breach of constitutional rights.
67
In the result the Court declined to grant
constitutional damages.
It
seems clear that in an appropriate case a private law delictual
remedy may serve to protect and enforce a constitutionally

entrenched fundamental right. Thus a claimant seeking “appropriate
relief” to which it is entitled, may properly
resort to a
common law remedy in order to vindicate a constitutional right. It
seems obvious that the delictual remedy resorted
to must be capable
of protecting and enforcing the constitutional right breached.
Turning
to the present facts, it seems plain that but for its statutory
abolition, victims of motor accidents were entitled
to invoke the
common law delictual remedy to recover damages against wrongdoers
relying on the constitutional protection to
their bodily integrity
or security of the person. Simply put, they could seek to recover
damages in order to secure their bodily
integrity. It must follow
that when Parliament abolishes the common law right of recourse it
also limits the right entrenched
in section 12(1)(c) of the
Constitution. It diminishes the motor accident victims’
capacity to protect and to enforce
the right to the security of the
person. This limitation would render the abolition of the common
law remedy unconstitutional
unless it is justifiable.
Is the
limitation of section 12 justifiable?
Section
12(1)(c) is limited by a law of general application. What remains
is to probe whether the limitation is reasonable and
justifiable in
a democratic society that prides itself on the founding values of
our Constitution.
As
we have seen, the prime purpose of the legislative scheme is to
provide reasonable, fair and affordable compensation to all

innocent victims of motor accidents. It is to be expected that a
scheme which depends on public funding would at times have
income
less than the compensation victims may be entitled to. It is thus
fair and reasonable that the scheme should have a
cap as to the
character and extent of the compensation each victim is entitled
to.
As I
understand it, the real complaint of the applicants is that they
have lost the common law right of recourse and have to
contend with
a ceiling on their claim for general damages and to loss of income
or support. They add that the common law right
of recourse against
wrongdoers comes at no cost to the Fund. That is true. It is the
wrongdoer and not the Fund that would
be liable for the residual
common law damages. The Minister and the Fund have advanced
adequate justification for this limitation.
They rehearse no fewer
than eleven substantive grounds of justification, most of which are
cogent. The over-arching grounds
are the urgent need to make the
Fund financially viable and sustainable, and to make its
compensation regime more inclusive,
transparent, predictable and
equitable.
The
right to the security of the person is of great importance. The
adequate protection of bodily integrity is often a prerequisite
to
the enjoyment of all other guaranteed rights. As I have shown
earlier, the right is protected by the state in a myriad of
ways.
The protection includes providing a publicly funded insurance to
compensate accident victims. However, the state’s

constitutional duty to protect and enforce the right to security of
the person need not always include a civil claim for damages
in
delict or indeed any private law remedy.
68
In this regard O’Regan J said the
following:
“
These
remarks should not, of course, be understood to suggest that
delictual relief should not lie for the infringement of
constitutional
rights in appropriate circumstances. There will be
circumstances where delictual relief is appropriate. It is
important, however,
that we do not overlook the value of public law
remedies as effective and appropriate forms of constitutional
relief. It should
also be emphasised that a public law obligation
such as that under discussion does not automatically give rise to a
legal duty
for the purposes of the law of delict.”
69
The
impugned scheme puts in the place of the common law residual right
a compensation regime that is directed at ensuring that
the Fund is
inclusive, sustainable and capable of meeting its constitutional
obligations towards victims of motor vehicle accidents.
In any
event, the limitation of the right is only partial because a victim
is entitled to compensation, although now limited,
under the
legislative scheme. Given the purpose and the importance of the
scheme and in the absence of less restrictive means
and having
taken into consideration other relevant factors I am satisfied that
the limitation of section 12(1)(c) of the Constitution
is
reasonable and justifiable. Consequently the legislative abolition
of the residual common law claim passes constitutional
muster.
Does a
cap on compensation for loss of income or of dependants’
support infringe the right to property under section 25(1)
of the
Constitution?
The
applicants contend that the right to property under section 25(1)
of the Constitution is engaged “when medical costs
are
caused, earning capacity is reduced or destroyed and dependants’
support from their breadwinners cut off.”
They submit that
these are a “bundle of rights and assets”
70
or “rights with a monetary value” or
“new property”
71
all of which the constitutional property clause
protects. The applicants invoke
Phumelela
Gaming and Leisure Ltd v Gr
ü
ndlingh
,
72
a case in which this Court
accepted
that loss of goodwill is protected by section 25 of the
Constitution, in order to make the submission that goodwill
is to a
legal person what earning capacity is for a natural person.
73
To
meet this argument, the Minister contends that when someone incurs
costs he does not suffer a deprivation of property merely
because
the net value of his estate is thereby reduced. If it were so,
every imposition of tax would constitute a deprivation
of property
because the net value of the taxpayer’s estate is thereby
reduced. The Minister also submits that one’s
earning
capacity does not constitute property protected under section 25.
On this argument earning capacity is an element of
the security of
the person protected under section 12. The Minister also sought to
persuade us that it is the negligent driver
and not the state that
causes a victim to incur loss of income or support. The legislative
scheme does not deprive a victim
of income or support. It regulates
the extent to which the Fund would be liable. It simply provides a
legislative underpin
by way of a right to compensation for an
innocent victim.
The
meaning of property under the property clause is indeed a vexed
question. This is so for several reasons. I cite two only.

“Property” as used in the property clause is a word of
broad and inexact purport and yet it is not defined. The
common law
and indigenous law traditions conceptualise property and legal
relationships that relate to it in different ways.
Section 25(4)(b)
makes it clear that property is not limited to land. It must follow
that both corporeal and incorporeal property
enjoy protection. For
present purposes let it suffice to state that the definition of
property for purposes of constitutional
protection should not be
too wide to make legislative regulation impracticable and not too
narrow to render the protection
of property of little worth. In
many disputes, courts will readily find that a particular asset of
value or resource is recognised
and protected by law as property.
In other instances, determinations will be contested or prove
elusive.
Happily,
in this case, given the conclusion I reach, it is unnecessary to
resolve the debate whether a claim for loss of earning
capacity or
for loss of support constitutes “property”. I will
assume without deciding in favour of the applicants
that a claim
for loss of earning capacity or of support is “property”.
Even
if the impugned law does deprive the victim of property in the form
of reduced compensation for loss of earning capacity
or support,
the deprivation must be arbitrary before a limitation of the right
may occur. Arbitrary deprivation of property
may be procedural or
substantive. I do not understand the applicants’
constitutional challenge to include a complaint
that the impugned
statute resorted to an arbitrary procedure for reducing
compensation. They attack the scheme as substantively
irrational;
as an arbitrary deprivation of property.
I
have already found that the scheme, including the reduction of
compensation recoverable for loss of income or support, properly

advances the governmental purpose to make the Fund financially
viable and sustainable and to render the compensation regime
more
transparent, predictable and equitable. Accordingly, I am unable to
find an arbitrary deprivation of property, which is
the threshold
requirement for a limitation of section 25(1). It follows that
absent a limitation of the right, I need not enter
into a
justification analysis in relation to section 25(1). The
constitutional challenge to the amendment on the ground that
it
infringes section 25(1) of the Constitution must fail.
Whether
the prescribed UPFS tariff under Regulation 5(1) is rational and if
so, whether it limits the right to have access to
health care
services?
In
Regulation 5(1), the Minister has prescribed that the tariff for
claims to be paid by the Fund for hospital and other medical

treatment is that prescribed in the UPFS tariff.
74
The sharp end of the applicants’
constitutional attack against the Regulation is four-fold. They
contend, in the first
instance, that the Regulation is irrational
and thus unconstitutional. Secondly, that the tariff deprives the
innocent victim
of an effective remedy in breach of section 12 read
together with section 7(2) of the Constitution; thirdly, that it is
retrogressive
and not progressive as required by section 27(2); and
last that it is unreasonable and therefore in breach of section
27(1)(a).
For
these contentions, the applicants draw attention to the facts which
may be gleaned from the specialist testimony of Dr Edeling,
a
neurosurgeon; Dr Oelofse; Dr Baalbergen; Dr Theron; and Dr
Campbell. To this list must be included Mr Seirlis, the National

Director of the third applicant, QuadPara Association of South
Africa, as well as Ms Best. Certain facts appear from the evidence.

The prescription of UPFS makes it impossible for road accident
victims to obtain treatment in a private health care centre.
Dr
Edeling explains why. The tariff is so low that road accident
victims will not be able to obtain treatment from private
health
care institutions.
He
draws attention to three tariffs which show what fees medical
practitioners generally receive and compares the UPFS tariff
with
those tariffs and fee guidelines for the payment of private medical
care. The lowest of the three tariffs is the NHRPL.
This is a list
of procedure codes and descriptions, rules and modifiers with a
reference price overseen by the Department of
Health. Most medical
aid schemes determine their baseline rate of payment for medical
services as a percentage of the NHRPL
rate. The second tariff is
the Compensation for Occupational Injuries and Diseases (COID)
tariff according to which the Workman’s
Compensation
Commissioner pays for the medical treatment of injured workers. It
is said to be double the NHRPL tariff and 300%
to 500% higher than
the UPFS tariff. The last comparator tariff is the Health
Professions Council Ethical Tariff for Medical
Practitioners
(HPCMP) which is generally known as the “ethical ceiling”
of what private medical practitioners could
charge. Although this
tariff has recently been scrapped it is still used by medical
practitioners as a reasonable guideline.
The ceiling for senior
medical practitioners was up to 120% of the HPCMP tariff. What
stands out clearly from the above is
that in practice, the costs of
private medical services vary between the NHRPL and the HPCMP
tariffs. It must follow that the
UPFS tariff is far below the
lowest of these tariffs. It simply cannot be compared with the
rates commonly charged for reasonable
private care. This conclusion
is supported by Drs Oelofse and Baalbergen.
On
behalf of the respondents, Dr Fleming, a neurologist, testified
that most neurologists would be prepared to work for fees

prescribed under the NHRPL tariff. However, his evidence does not
meet head-on the evidence of the applicants. This is so,
because he
does not say that neurologists will be willing to work at the UPFS
tariff. As we have seen, the NHRPL tariff is
said to be 300% to
500% higher than the UPFS tariff.
I
have no hesitation in finding that the UPFS tariff is a tariff that
is wholly inadequate and unsuited for paying compensation
for
medical treatment of road accident victims in the private health
care sector. The evidence shows that virtually no competent
medical
practitioner in the private sector with the requisite degree of
experience would consistently treat victims at UPFS
rates. This
simply means that all road accident victims who cannot afford
private medical treatment will have no option but
to submit to
treatment at public health establishments.
It
emerges from the evidence that the UPFS tariff does not cover
material services which road accident victims require and which
are
provided by the private health care sector. Dr Edeling draws
specific attention to quadriplegic needs. He lists services
which
do not appear on the UPFS tariff which relate to home visits by a
psychiatrist, counselling by a psychologist, home nursing
services
and home-based physiotherapy. The evidence suggests that for
victims rendered quadriplegic or paraplegic living in
informal
settlements or living far away from hospitals or clinics, home
visits can mean the difference between life and death.
It is clear,
that the UPFS tariff is inadequate for paying compensation for
medical treatment for road accident victims and
in particular in
relation to victims rendered quadriplegic or paraplegic.
Lastly
and perhaps more importantly, the evidence shows that in certain
material respects the public health institutions are
not able to
provide adequate services crucial to the rehabilitation of accident
victims who are permanently disabled. Dr Edeling
testifies that
over many years in practice as a neurosurgeon he has had to assess
hundreds of permanently disabled road accident
victims with head
and spinal injuries. He has been confronted on a repeated basis
with evidence of very inadequate facilities
at public health
institutions. In very detailed evidence, Mr Seirlis explains the
lot of a road accident victim who is rendered
quadriplegic or
paraplegic. He or she requires immediate and long-term medical and
rehabilitative care. Many require specialised
care for life,
without which they have to face life-threatening complications. He
adds that even with care such patients easily
develop urinary tract
infections, pulmonary complications such as pneumonia and frequent
bowel obstruction all of which need
urgent and continuous medical
care. He adds that these services are mostly not available from
state facilities but are available
from private health care
providers.
A
quadriplegic or paraplegic is constantly at risk in a state
hospital as a result of the chronic lack of resources, paucity
of
staff and inexperience in dealing with spinal cord injuries. This
evidence is confirmed by Ms Best, the President of the
Occupational
Therapy Association of South Africa. She finally concludes by
stating that payment by the Fund at UPFS rates will
make it nearly
impossible for seriously injured patients to procure medical and
rehabilitative care on a sustained basis in
the private sector.
Lastly, Dr Baalbergen, Dr Campbell and so too Dr Theron reach the
stark conclusion that spinal cord injured
patients who are wholly
dependent on state health care facilities commonly receive
substandard care and are at the material
risk of untimely death due
to untreated complications.
The
affidavit of Dr Lekalakala has been put up by the respondents to
answer the detailed evidence of the applicants I have shortly

rehearsed above. He does not answer the specific complaints of the
applicants. He concedes, properly so, that there are serious

deficiencies within the state health care centres and acknowledges
that there are vast disparities between the public and private

sector, a matter which remains a key challenge. To his affidavit he
attaches the National Plan for the Efficient and Equitable

Development of Tertiary and Regional Hospital Services (National
Plan) and expresses the hope that the deficiencies in the
public
health system will be addressed in time. The National Plan, which
was drafted in 2004, frankly confesses to serious
systemic
challenges due to chronic underfunding and an ever increasing
demand for services. It recognises that this under-resourcing
of
public healthcare establishments leads to poor quality of care,
substantial geographic inequality of care, poor referral
systems
between regional and tertiary hospitals and a lack of patient
transport. In short, the National Plan, in great part,
acknowledges
the deficiencies of public health systems which were described by
the expert testimony presented on behalf of
the applicants.
It
is indisputable that imposing public health tariffs on road
accident victims amounts to restricting them to treatment at
public
health institutions, if they cannot fund the healthcare themselves.
In some instances, that restriction will be perfectly
reasonable
and adequate. However, the overwhelming and undisputed evidence
demonstrates that road accident victims who are
rendered
quadriplegic or paraplegic require specialised care for life
without which there can be life-threatening complications
which if
unattended lead to their inevitable demise.
To
this charge, the respondents have no effective answer. They
acknowledge the vast disparity between private and public

healthcare establishments and explain how they propose to improve
public healthcare establishments. What they do not do, is to
meet
head-on the complaint that quadriplegic or paraplegic road accident
victims would not easily survive the health care services
at public
hospitals.
Another
important, but not individually decisive, consideration is that
actuarial evidence demonstrates that an implementation
of the UPFS
tariff would save the Fund no more than 6% of its total
compensation bill. This relatively meagre saving seen against
other
compelling factors makes it unreasonable to consign quadriplegics
and paraplegics to a possible death by reducing their
adequate
access to medical care in pursuit of a financial saving of a
negligible order. The respondents do not suggest that
there is a
historical or present unfairness related to giving serious spinal
injury accident victims access to private health
care services
whilst public health provision is being progressively improved.
I am
satisfied that the UPFS tariff is incapable of achieving the
purpose which the Minister was supposed to achieve, namely
a tariff
which would enable innocent victims of road accidents to obtain the
treatment they require. UPFS is not a tariff at
which private
health care services are available; it does not cover all services
which road accident victims require with particular
reference to
spinal cord injuries which lead to paraplegia and quadriplegia. The
public sector is not able to provide adequate
services in a
material respect. It must follow that the means selected are not
rationally related to the objectives sought
to be achieved. That
objective is to provide reasonable healthcare to seriously injured
victims of motor accidents.
I
may briefly add that, even if Regulation 5(1) were found to be
rational, the tariff is in any event under-inclusive in relation
to
the healthcare needs of quadriplegic and paraplegic road accident
victims and, for that reason would be unreasonable and
thus in
breach of section 27(1)(a) read together with section 27(2) of the
Constitution.
Having
reached this conclusion I need not resolve the balance of the
constitutional complaints in relation to the tariff. I
would
accordingly strike down Regulation 5(1) and the Minister would be
obliged to make a fresh determination.
Whether
the right to adequate remedy in terms of section 38 of the
Constitution has been infringed?
The
applicants submit that section 38 of the Constitution has been
infringed because the amendment provides an inadequate remedy
in
the place of one it displaces and in that way, negatively affects
the applicants’ right to a remedy as envisioned
in section 38
of the Constitution. In effect, the applicants invite us to
determine whether the scheme introduced by the amendment
breaches
the right to adequate remedy for loss incurred by motor accident
victims. It is so that the amendment does abolish
the residual
common law right to claim losses not compensable under the RAF Act.
This
complaint is without merit. Section 38 is available to an applicant
who alleges that a right in the Bill of Rights has
been infringed
or threatened. Where that is so, a court may grant appropriate
relief. Save in relation to Regulation 5(1),
which I find
inconsistent with the Constitution, the scheme does not infringe
any right in the Bill of Rights. The amendment
has introduced a
rational scheme that thus passes that threshold requirement. Even
if the new scheme is a limitation on the
right to approach a
competent court, I have already found that the limitation the
scheme places on the right to adequate remedy
is reasonable and
justifiable in all the circumstances. For the new scheme to advance
the reform package it promotes, the residual
common law claim must
give way to a more inclusive, sustainable and equitable system of
compensation for road accident victims.
It must also be remembered
that the amendment furnishes an underpin, or, if you will, a right
to compensation, to all motor
accident claimants who have incurred
losses arising from negligent driving. It is so that the scheme
changes the liability
of the Fund from unlimited to limited
compensation to accident victims. The limitation is not only
rational but also reasonable
and justifiable. As we have seen, it
is necessary to reform the compensation system of the Fund. Public
funds to finance the
liability of the Fund are finite. The scheme
must be sustainable, open and fair to every victim. This ground for
challenging
the constitutional validity of the amendment too must
fail.
What
is the appropriate remedy?
It
should be clear that I would dismiss all constitutional challenges
save the one against Regulation 5(1). Whilst in the High
Court the
applicants attacked section 17(4B) which empowers the Minister to
make Regulation 5(1), in this Court the applicants
rightly limited
the attack to Regulation 5(1). This change of stance is well taken.
The empowering provision, section 17(4B),
75
does not require the Minister to prescribe, as
he did, the UPFS tariff in particular. It simply empowers the
Minister to prescribe,
after consultation with the Minister for
Health, a tariff based “on the tariffs for health services
provided by public
health establishments”. The provision
seems to recognise that there is more than one tariff for health
services in public
health institutions and that, subject to the
required consultation, and the constitutional imperative of
reasonable access
to healthcare, the Minister is empowered to
fashion a tariff. It need not be the UPFS tariff.
The
order I intend to make is that Regulation 5(1) is inconsistent with
the Constitution. I would not suspend the order of constitutional

invalidity. Firstly, the evidence shows that a number of victims of
road accidents that occurred before the effective date
of the
amendment are entitled to and do receive health care in private
institutions. A cost which the Fund seems to be bearing
well.
Secondly, a suspension of the order would create unnecessary
hardships for those who urgently need appropriate treatment
that is
not available in public healthcare establishments but is accessible
in private hospitals. In any event, the actuarial
evidence placed
before us shows that an implementation of Regulation 5(1) has
minimal adverse financial impact. If implemented,
the Fund would
save no more than 6% of its total claims expenditure. Whilst the
Minister takes time to reformulate the tariff
to be made under the
empowering provision, accident victims must be entitled to access
adequate healthcare.
Nor
do I intend to limit its retrospective application. The
retrospective application to the date the Regulation took effect,

will ensure that the liability of the Fund for healthcare needs of
victims of motor accidents and in particular quadriplegics
and
paraplegics who fell victim to road accidents from the inception of
the amendment up to the date of the order remains intact.
The order
is intended to afford victims of motor vehicle accidents
compensation for medical treatment or health services to
which they
would have been entitled had the Amendment Act not been passed.
What
costs order should be made?
The
High Court made no order as to costs. No cogent reasons have been
advanced why that decision not to award costs should be
interfered
with. In this Court the applicants enjoy a certain measure of
success. They had to come to this Court to upset the
order of the
High Court on Regulation 5(1). They are entitled to be reimbursed
for at least a part of the costs they have incurred
in this Court.
My considered view is that the Minister must pay one third of the
costs of the applicants which costs shall
include the costs for the
use of two counsel for each set of applicants.
Order
The
following order is made:
The
application for leave to appeal is granted.
The
appeal is dismissed save to the extent set out below.
The
appeal against the order of the High Court dismissing the
applicants’ constitutional challenge to Regulation 5(1)

issued by the Minister for Transport on 21 July 2008 in terms of
section 17(4B)(a)
of the
Road Accident Fund Act 56 of 1996
, is
upheld.
It
is declared that
Regulation 5(1)
is inconsistent with the
Constitution and invalid.
(e) Until the Minister for Transport prescribes a new tariff for
health services in terms of
section 17(4B)(a)
of the
Road Accident
Fund Act, a
third party who has sustained bodily injury and whom the
Road Accident Fund is obliged to compensate as contemplated in
sections 17(4)(a)
,
17
(5) and (6) of the
Road Accident Fund Act, is
entitled to compensation or health services as if he or she had been
injured before the Road Accident Fund Amendment Act, 19
of 2005 came
into operation.
(f) The Minister for Transport is ordered to pay one third of the
costs of the first to the eleventh applicants, which shall
include
costs of two counsel.
Ngcobo CJ, Brand AJ,
Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J
and Yacoob J concur in the judgment
of Moseneke DCJ.
F
or the First and Third to Tenth
Applicants:
Advocate
JJ Gauntlett SC
and
Advocate FB Pelser instructed by Bowman Gilfillan Inc.
For the Second Applicant: Advocate G Budlender SC and Advocate N
Mayosi instructed by Bowman Gilfillan Inc.
For the Eleventh Applicant: KM Röntgen of Röntgen &
Röntgen Inc.
For the First Respondent: Advocate W Trengove SC, Advocate MR
Madlanga SC and Advocate HJ de Waal instructed by the State
Attorney,
Johannesburg.
For the Second Respondent: Advocate S Budlender, Advocate B Makola
and Advocate N Mji instructed by Bell Dewar Inc.
1
Law
Society of South Africa and Others v Minister of Transport and
Another
, Case No 10654/09, North
Gauteng High Court, Pretoria, 31 March 2010, unreported.
2
Act
56 of
1996.
3
Act
19
of 2005 which only came into force on 1 August 2008. See
Proclamation R29 GG 31249, 21 July 2008.
4
Union
of Refugee Women and Others v Director: Private Security Industry
Regulatory Authority and Others
[2006] ZACC 23
;
2007
(4) SA 395
(CC);
2007 (4) BCLR 339
(CC)
at
para 21.
5
See
for example
Bruce and Another v
Fleecytex Johannesburg CC and Others
[1998]
ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 8 and
S v Bequinot
[1996]
ZACC 21
;
1997 (2) SA 887
(CC);
1996 (12) BCLR 1588
(CC) at para 15.
6
Act
29 of 1942.
7
The
Smit Commission of Inquiry in 1950; the Corder
Commission of Inquiry in 1954; the Du Plessis Commission of Inquiry
in 1962 and
the Moll Commission of Inquiry in 1968.
8
For
an overview of the history of compulsory motor vehicle insurance
under the Act, see Suzman & Gordon
The Law of Compulsory
Motor Vehicle Insurance in South Africa
(Juta & Co, Cape
Town 1954) 1
et seq
.
9
Act
56 of 1972.
10
The
Act was amended by the Compulsory Motor Vehicle Insurance Amendment
Acts 22 of 1974; 87 of 1976; 69 of 1978; 23 of 1980; 2
of 1982; 4 of
1983 and by the Second General Law Amendment Act 94 of 1974.
11
The
Wessels Commission of Inquiry in 1976 and the Grosskopf Commission
of Inquiry in
1981.
12
Act
84
of 1986.
13
The
Viviers Commission of Inquiry in
1987.
14
Act
93
of 1989.
15
The
Act was amended by the Multilateral Motor Vehicle Accident Fund
Amendment Act 22 of 1992 and by the Financial Supervision
of the
Multilateral Motor Vehicle Accidents Fund Act 8 of 1993, and by
Proclamations 102 GG 13597, 1 November 1991, and 62 GG
15004, 16
July 1993.
16
The
Act was amended by the Road Accident Fund Amendment Acts 15 of 2001,
43 of 2002 and 19 of 2005 and by the Revenue Laws Amendment
Acts 19
of 2001 and 31 of 2005.
17
The
Satchwell Commission was formally named the Road Accident Fund
Commission of Inquiry. Its report recommended that a new authority,

to be called the Road Accident Benefit Scheme, should be created to
implement a compensation system wherein the benefits would
be as
inclusive as possible and which would be based on need and not
fault.
18
Above
n 3.
19
The
amounts provided in subsection 17(4)(c) reflect the adjustment made
in accordance with section 17(4A)(a) by BN 148 GG 33677,
29 October
2010.
20
Id.
21
Act
61 of 2003.
22
See
section 17(4B)(a) read with 17(4)(a) of the RAF Act.
23
See
GN R770 GG 31249, 21 July 2008.
24
Prior
to the amendments section 18 provided:
“
(1) The liability of the Fund
or an agent to compensate a third party for any loss or damage
contemplated in section 17 which
is the result of any bodily injury
to or the death of any person who, at the time of the occurrence
which caused that injury
or death, was being conveyed in or on the
motor vehicle concerned, shall, in connection with any one
occurrence, be limited,
excluding the cost of recovering the said
compensation, and except where the person concerned was conveyed in
or on a motor vehicle
other than a motor vehicle owned by the South
African National Defence Force during a period in which he or she
rendered military
service or underwent military training in terms of
the Defence Act, 1957 (Act 44 of 1957), or another Act of Parliament
governing
the said Force, but subject to subsection (2)—
(a) to the sum of R25 000 in respect of any bodily
injury or death of any one such person who at the time of the
occurrence which
caused that injury or death was being conveyed in
or on the motor vehicle concerned—
(i) for reward; or
(ii) in the course of the lawful business of the owner
of that vehicle; or
(iii) in the case of an employee of the driver or owner
of the motor vehicle, in respect of whom subsection (2) does not
apply,
in the course of his or her employment; or
(iv) for the purposes of a lift club where that motor
vehicle is a motor car; or
(b) in the case of a person who was being conveyed in
or on a motor vehicle concerned under circumstances other than those
referred
to in paragraph (a), to the sum of R25 000 in respect of
loss of income or of support and the costs of accommodation in a
hospital
or nursing home, treatment, the rendering of a service and
the supplying of goods resulting from bodily injury to or the death

of any one such person, excluding the payment of compensation in
respect of any other loss or damage.
(2) Without derogating from any liability of the Fund
or an agent to pay costs awarded against it or such agent in any
legal proceedings,
where the loss or damage contemplated in section
17 is suffered as a result of bodily injury to or death of any
person who, at
the time of the occurrence which caused that injury
or death, was being conveyed in or on the motor vehicle concerned
and who
was an employee of the driver or owner of that motor vehicle
and the third party is entitled to compensation under the
Compensation
for Occupational Injuries and Diseases Act, 1993 (Act
130 of 1993), in respect of such injury or death—
(a) the liability of the Fund or such agent, in respect
of the bodily injury to or death of any one such employee, shall be
limited
in total to the amount representing the difference between
the amount which that third party could, but for this paragraph,
have
claimed from the Fund or such agent or the amount of R25 000
(whichever is the lesser) and any lesser amount to which that third

party is entitled by way of compensation under the said Act; and
(b) the Fund or such agent shall not be liable under
the said Act for the amount of the compensation to which any such
third party
is entitled thereunder.
(3) Without derogating from any liability of the Fund
or an agent to pay costs awarded against it or such agent in any
legal proceedings,
where the loss or damage contemplated in
section
17
is suffered as a result of bodily injury to or death of a
member of the South African National Defence Force, other than a
person
referred to in subsection
(2), and the third party is entitled to compensation under the
Defence Act, 1957, or another Act of
Parliament governing the said
Force in respect of such injury or death—
(a) the liability of the Fund or such agent, in respect
of the bodily injury to or death of any such member of the said
Force,
shall be limited in total to the amount representing the
difference between the amount which that third party could, but for

this paragraph, have claimed from the Fund or such agent and any
lesser amount to which that third party is entitled by way of

compensation under the said Defence Act or the said other Act; and
(b) the Fund or such agent shall not be liable under
the said Defence Act or the said other Act for the amount of the
compensation
to which any such third party is entitled thereunder.
(4) The liability of the Fund or an agent to compensate
a third party for any loss or damage contemplated in section
17 which
is the result of the death of any person shall in
respect of funeral expenses be limited to the necessary actual costs
to cremate
the deceased or to inter him or her in a grave.”
25
Prior
to the amendments section 19 provided:
“
The Fund or an agent shall not be obliged to
compensate any person in terms of section 17 for any loss or damage—
. . . .
(b) suffered as a result of bodily injury to or death
of any person who, at the time of the occurrence which caused that
injury
or death—
was being conveyed for reward on a motor vehicle which
is a motor cycle; or
is a person referred to in section 18(1)(b) and a
member of the household, or responsible in law for the maintenance,
of the
driver of the motor vehicle concerned. . . .”
26
In
Tsotetsi v Mutual and Federal Insurance Co Ltd
[1996] ZACC
19
;
1997 (1) SA 585
(CC);
1996 (11) BCLR 1439
(CC) the
constitutional validity of the provisions placing a cap on passenger
claims was dealt with but not decided. The cause
of action arose
before the Constitution came into force. In
Mvumvu and Others v
Minister of Transport and Another
, Case No 7490/2008, Western
Cape High Court, Cape Town, 28 June 2010, unreported, the Western
Cape High Court has struck down
some of the caps and referred the
declaration of constitutional invalidity to this Court for
confirmation. The matter was heard
by this Court on 4 November 2010.
27
Thayer
“The origin and scope of the American Doctrine of
Constitutional Law” (1893-1894) 7
Harvard
LR
129. Also see a discussion of
Thayer’s theory by Lenta “Judicial restraint and
overreach”
(2004) 20
SAJHR
544.
28
Section
1(c) of the Constitution.
29
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC)
and
Pharmaceutical Manufacturers Association of SA and Another:
In re Ex parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC).
30
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 74-5
and
New National Party of South Africa
v Government of the Republic of South Africa and Others
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5)
BCLR 489
(CC) at para 19.
31
Union
of Refugee Women
above n 4 at para 36
and
Prinsloo v Van der Linde and
Another
[1997] ZACC 5
;
1997 (3) SA
1012
(CC);
1997 (6) BCLR 759
(CC) at para 25.
32
Merafong
Demarcation Forum and Others v President of the Republic of South
Africa and Others
[2008] ZACC 10
;
2008 (5) SA 171
(CC);
2008
(10) BCLR 969
(CC) at paras 263; 274 and 284, and
Pharmaceutical
above n 29 at para 86
.
33
Pharmaceutical
id at para 86.
34
Albutt
v Centre for the Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5)
BCLR 391
(CC) at para 51.
35
Section
36(1)(d) of the Constitution.
36
See
[27] above.
37
In
this regard, see
Engelbrecht v Road
Accident Fund and Another
[2007] ZACC
1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC) at para 23 and
SA
Eagle Insurance Co Ltd v Van der Merwe NO
1998
(2) SA 1091
(SCA) at 1095J-1096A.
38
Section
5 of the RAF Act read with section 47 of and Schedule 1 Part 5B to
the Customs and Excise Act 91 of 1964.
39
See
table 10.1 in the
Report of the Road Accident
Fund Commission, 2002 at 219.
40
Schedule
1 Part 5B to the Customs and Excise Act 91 of 1964.
41
In
the High Court the Minister for Finance brought an application for
leave to intervene on the grounds that the national treasury
has a
direct and substantial interest in ensuring and preserving any
statutory provision which has the effect of maintaining
the
effective management of the resources of the Fund and ensuring
efficiency in the expenditure of revenue raised through a
compulsory
contribution by road users in the form of a fuel levy. For reasons
which are not immediately relevant, the High Court
refused to grant
the Minister for Finance leave to intervene, but ruled that the
evidence tendered by the Minister is admitted
as evidence in this
application.
42
See
[87]
et seq
below.
43
See
the “Draft Policy on the Restructuring of the Road Accident
Fund as Compulsory Social Insurance in Relation to the Comprehensive

Social Security System”, GN 121 GG 32940, 12 February 2010.
44
See
section 17(1) and 17(1A) of the RAF Act.
45
See
section 27(1)(a) and 27(1)(c) of the Constitution.
46
See
Thompson Newspapers Co v Canada
(Attorney General)
[1998] 1 SCR at 53;
Egan v Canada
[1995]
2 SCR 513
at 573 and
McKinney v
University of Guelph
[1990] 3 SCR 299
(SCC) at 317.
47
Section
12(2) provides:
“
Everyone has the right to bodily and
psychological integrity, which includes the right—
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific
experiments without their informed consent.”
48
The
interim Constitution of 1993 did not have a provision which is an
equivalent of section 12(1)(c) of the Constitution. However,
in
Carmichele v Minister of Safety and Security and Another (Centre
for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 44 this
Court relied on section 11 of the interim Constitution for the
finding that the state bears the duty to
prevent criminals in
custody from committing acts of violence against members of the
public.
49
Woolman
et al
(eds)
Constitutional Law of South Africa
vol 3 (Juta & Co, Cape Town 2009) 40-9.
50
Currie
& De Waal
The Bill of Rights
Handbook
5 ed (Juta & Co, Cape
Town 2005) 303.
51
Woolman
et al
above n 49 40-8. South Africa signed the Convention on
3 October 1994 and ratified it on 10 December 1998.
52
Article
5 provides:
“
In compliance with the fundamental obligations
laid down in article 2 of this Convention, States Parties undertake
to prohibit
and to eliminate racial discrimination in all its forms
and to guarantee the right of everyone, without distinction as to
race,
colour, or national or ethnic origin, to equality before the
law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals
and all other organs administering justice;
(b)
The right to security of person and protection
by the State against violence or bodily harm, whether inflicted by
government officials
or by any individual group or institution;
(c) Political rights, in particular the right to
participate in elections-to vote and to stand for election-on the
basis of universal
and equal suffrage, to take part in the
Government as well as in the conduct of public affairs at any level
and to have equal
access to public service;
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence
within the border of the State;
(ii) The right to leave any country, including one's
own, and to return to one's country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in
association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and
religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and
association;
(e) Economic, social and cultural rights, in
particular:
(i) The rights to work, to free choice of employment,
to just and favourable conditions of work, to protection against
unemployment,
to equal pay for equal work, to just and favourable
remuneration;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social
security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural
activities;
(f) The right of access to any place or service
intended for use by the general public, such as transport hotels,
restaurants,
cafes, theatres and parks.” (Emphasis added.)
53
Article
2 provides:
“
(
1)
States Parties condemn racial discrimination and undertake to pursue
by all appropriate means and without delay a policy of
eliminating
racial discrimination in all its forms and promoting understanding
among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or
practice of racial discrimination against persons, groups of persons
or
institutions and to ensure that all public authorities and public
institutions, national and local, shall act in conformity with
this
obligation;
(b) Each State Party undertakes not to sponsor, defend
or support racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to
review governmental, national and local policies, and to amend,
rescind
or nullify any laws and regulations which have the effect of
creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an
end, by all appropriate means, including legislation as required by
circumstances,
racial discrimination by any persons, group or
organization;
(e) Each State Party undertakes to encourage, where
appropriate, integrationist multiracial organizations and movements
and other
means of eliminating barriers between races, and to
discourage anything which tends to strengthen racial division.
(2) States Parties shall, when the circumstances so
warrant, take, in the social, economic, cultural and other fields,
special
and concrete measures to ensure the adequate development and
protection of certain racial groups or individuals belonging to

them, for the purpose of guaranteeing them the full and equal
enjoyment of human rights and fundamental freedoms. These measures

shall in no case entail as a consequence the maintenance of unequal
or separate rights for different racial groups after the
objectives
for which they were taken have been achieved.”
54
See
Currie & De Waal above n 50 303-5.
55
S
v Baloyi
(Minister of Justice and
Another intervening)
[1999] ZACC 19
;
2000 (2) SA 425
(CC);
2000 (1) BCLR 86
(CC).
56
Id
at para 11.
57
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20;
2005 (2) SA 359 (CC); 2005 (4) BCLR 301
(CC).
58
Id
at para 78.
59
See
sections 12
,
42
,
43
,
59
,
63
and
65
of the
National Road Traffic Act
93 of 1996
.
60
Section
27(3) of the Constitution provides: “No one may be refused
emergency medical treatment.” Also see
section 5
of the
National Health Act 61 of 2003
which provides: “A health care
provider, health worker or health establishment may not refuse a
person emergency medical
treatment.”
61
See
section 4
of the
National Health Act.
62
See
section 9
of the
Social Assistance Act 13 of 2004
.
63
Section
39(3)
provides: “
The Bill of Rights does not deny the
existence of any other rights or freedoms that are recognised or
conferred by common law,
customary law or legislation, to the extent
that they are consistent with the Bill.”
64
[1997]
ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7)
BCLR 851(CC).
65
Under
the interim Constitution a claimant who applied to court was
entitled to “appropriate relief” under section
7(4)(a).
Fundamental rights were protected in chapter 3 of the interim
Constitution.
66
Fose
above n 64
at para 60.
67
Id
at para 58. Also see
Rail Commuters
above n 57 at para 81.
68
See
Fose
above
n 64 at paras 77-80. This position seems to accord with the position
Canadian courts have taken that the right to security
of the person
under section 7 of the Charter does not include a right to a civil
claim for damages for personal injury. See
Taylor v Canada
(Minister of Health)
(2007) 285 D.L.R. (4
th
) 296
at para 55;
Filip v Waterloo (City)
(1992) 12 C.R.R. (2d) 113
at 117;
Budge v Calgary (City)
(1991) 6 C.R.R. (2d) 365 at
372-3;
Wittman (Guardian Ad Litem) v Emmott
(1991) 77
D.L.R.(4
th
) 77 at 87-9;
Whitbread v Walley
(1990)
77 D.L.R. (4
th
) 25 at 27-8 and
Medwid v Ontario
(1988) 48 D.L.R. (4
th
) 272 at 282 and 287-8.
69
Rail
Commuters
above n 57 at para 81.
70
See
Administrator, Natal, and Another v Sibiya and Another
[1992] ZASCA 115
;
1992
(4) SA 532
(A) at 539A-B;
Dippenaar v Shield Insurance Co Ltd
1979 (2) SA 904
(A) at 917A-C and
Union Government (Minister of
Railways and Harbours) v Warneke
1911 AD 657
at 665. Also see
Libyan American Oil Company (LIAMCO) v Government of Libyan Arab
Republic
(1981) 20 ILM 1; 62 ILR at 140 and Reich “The New
Property”
(1964) 73
Yale LJ
773.
71
Chaskalson
“The property clause: Section 28 of the Constitution”
(1994)
SAJHR
131
at 132.
72
Phumelela
Gaming and Leisure Ltd v Gr
ü
ndlingh
and Others
[2006] ZACC 6
;
2007 (6) SA 350
(CC);
2006 (8) BCLR 883
(CC)
.
73
For
this proposition they rely on Neethling
et
al
Law of Delict
6
ed (LexisNexis Butterworths, Durban 2010) at 19 n 153 and Van
Heerden & Neethling
Unlawful
Competition
2 ed (LexisNexis
Butterworths, Durban 2008) at 16.
74
Regulation
5(1) provides:
“
The liability of the Fund or
an agent contemplated in section 17(4B)(a) of the Act, shall be
determined in accordance with the
Uniform Patient Fee Schedule for
fees payable to public health establishments by full-paying
patients, prescribed under section
90(1)(b) of the National Health
Act, 2003 (Act No. 61 of 2003), as revised from time to time.”
75
Section
17(4B)
provides:
“
(
a)
The liability of the Fund or an agent regarding any tariff
contemplated in subsections (4)(a), (5) and (6) shall be based on

the tariffs for health services provided by public health
establishments contemplated in the National Health Act, 2003 (Act
No. 61 of 2003), and shall be prescribed after consultation with the
Minister of Health.
(b) The tariff for emergency medical treatment provided
by a health care provider contemplated in the National Health Act,
2003—
(i) shall be negotiated between the Fund and such
health care providers; and
(ii) shall be reasonable taking into account factors
such as the cost of such treatment and the ability of the Fund to
pay.
(c) In the absence of a tariff for emergency medical
treatment the tariffs contemplated in paragraph (a) shall apply.”