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[2011] ZACC 1
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Mvumvu and Others v Minister of Transport and Another (CCT 67/10) [2011] ZACC 1; 2011 (2) SA 473 (CC) ; 2011 (5) BCLR 488 (CC) (17 January 2011)

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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 67/10
[2011] ZACC 1
In the matter between:
ANELE
MVUMVU
….............................................................................
First
Applicant
LOUISE
PEDRO
….............................................................................
Second
Applicant
BIANCA
SMITH
…...............................................................................
Third
Applicant
and
MINISTER
FOR TRANSPORT
…......................................................
First
Respondent
ROAD
ACCIDENT FUND
….........................................................
Second
Respondent
Heard on :
4 November 2010
Decided on
: 17 February 2011
JUDGMENT
JAFTA J:
This case concerns a constitutional challenge to legislative
provisions that placed a cap on the recovery of damages by the
victims of motor collisions under the Road Accident Fund Act
1
(Act). This cap was contained in section 18 of the Act.
2
It has since been removed by the Road Accident Fund Amendment Act
3
(Amendment Act), which came into effect on 1 August 2008. The
amendment does not apply to claims that arose before it came into

effect.
The Western Cape High Court, Cape Town
4
(High Court) granted an order that declared parts of section 18
inconsistent with the Constitution and invalid. The High Court

further ordered that the invalidity order will apply to all claims
not yet prescribed or in respect of which no final settlement
has
been concluded or no final judgment has been made.
5
The court also directed that these claimants would qualify for no
greater compensation than those who suffered bodily injury
after the
Amendment Act took effect.
The applicants, who all sustained bodily injuries in motor vehicle
accidents on different dates before 1 August 2008, are Ms
Anele
Mvumvu, Ms Louise Pedro and Ms Bianca Smith. In these proceedings
they seek confirmation of the High Court’s declaration
of
invalidity and leave to appeal against the ancillary order limiting
the amount of compensation they may claim to what is recoverable

under the Amendment Act. They cite the Minister for Transport
(Minister) and the Road Accident Fund (Fund) as respondents.
The respondents too are dissatisfied with the order invalidating the
section with immediate effect and directing that claimants
should
receive compensation equivalent to what is obtainable under the
Amendment Act. But they do not oppose confirmation of
the
declaration of invalidity to the extent that the order this Court
makes does not affect claims that arose before 1 August
2008.
Factual Background
On 14 February 2005 Ms Mvumvu was a passenger in a minibus taxi that
travelled from the Eastern Cape to Cape Town. On the way
the driver
lost control of the vehicle and as a result it rolled. Ms Mvumvu
suffered serious bodily injuries which necessitated
that she be
conveyed to hospital by helicopter. She remained in hospital for two
months while undergoing various operations which
included a partial
amputation of her right foot. As a result she incurred medical costs
in excess of R25 000.
Before the accident, Ms Mvumvu had been employed as a seasonal
fruit-picker on farms in Stellenbosch. Since the accident she
has
been unable to gain employment due to her injuries. Her only source
of income is a disability grant she receives from the
government.
She lives in an informal house described by her as a shack. She
stays with her mother, her brother, two children
of her deceased
sister and two children of her own. The family lives on her grant
and the child support grants which collectively
come to the paltry
amount of R1 070 per month.
Ms Mvumvu lodged a claim for compensation with the Fund which
admitted liability to compensate her. But the Fund pointed out
that
she was not entitled to any compensation over and above the sum of
R25 000 it had already paid for her medical bills. As
the taxi in
which she was travelling was unlicensed, the Fund contended that by
virtue of section 18(1)(b) of the Act,
6
her claim was limited to R25 000. Since this amount has been paid
for her medical care, the Fund informed her that the claim
has been
settled in full. This meant that she could not receive compensation
for the loss of income or earning capacity. Nor
could she claim
general damages from the Fund. As the taxi driver died in the
accident she could theoretically sue his estate
but she alleges that
it has no assets.
On 7 June 2007, Ms Pedro was travelling in a minibus taxi between
Citrusdal and Cape Town. The driver lost control of the vehicle

which crashed into rocks on the side of the road. Ms Pedro sustained
fractures to both of her arms as well as to her ankle. She
was
hospitalised for three weeks during which period a screw was
inserted into her right arm and a plate into her left arm.
She is unemployed and the accident has reduced her ability to
function effectively. At the time the case was instituted in the

High Court she had not recovered completely and the injury to her
ankle still gave her pain. Because she was a fare-paying passenger

her claim too was limited to R25 000 by section 18(1)(a)(i) of the
Act.
7
In May 2007, Ms Smith was employed as a site clerk as part of her
training in civil engineering. During the course of her employment

and while travelling in a vehicle owned by her employer, an accident
occurred. The driver lost control of the vehicle which left
the road
and rolled. Ms Smith suffered serious injuries and underwent surgery
in hospital where she spent two months.
Section 18(2) of the Act limits her claim for compensation to the
difference between R25 000 and any lesser amount she may claim
under
the Compensation for Occupational Injuries and Diseases Act
8
(COIDA). Since her claim for medical costs under COIDA exceeds R25
000, section 18(2) deprives her of further compensation from
the
Fund. As in the case of Ms Mvumvu, her compensation covers medical
costs only.
In the High Court
As already noted, the applicants sought to remove the barrier that
hindered them from claiming full compensation for the losses
they
had suffered. They instituted an application in which they
challenged the constitutionality of section 18 of the Act (impugned

provisions). They contended that the impugned provisions violate
their right to equality;
9
the right to dignity;
10
the rights to security of the person and effective remedy
11
and the rights to health care and social security.
12
Although the Minister initially sought to defend the
constitutionality of the impugned provisions, he did not persist
with
his opposition to the declaration of invalidity. Instead, both
respondents chose to abide the decision of the court. Remedy was
the
only contested issue.
Meanwhile, Parliament had already passed the Amendment Act which
repealed the impugned provisions but the repeal had not been
put
into operation at the time these proceedings were launched. The
Amendment Act came into force while the proceedings were
pending in
the High Court.
Notwithstanding the repeal, the applicants persisted in asking for
relief in the High Court. This was made necessary by section
12 of
the Amendment Act
13
which stipulates that claims that arose before 1 August 2008 must be
dealt with in terms of the old scheme regulated by the impugned

provisions. Put differently, the section keeps the repealed
provisions in force for purposes of determining claims that arose

before 1 August 2008.
In determining whether the impugned provisions infringed the
applicants’ rights and are therefore unconstitutional, the

High Court preferred to test the provisions against the equality
clause. Following its analysis of the provisions against section
9
of the Constitution, the court held that the challenged provisions
were arbitrary and constituted unfair discrimination which
is not
justified in terms of section 36 of the Constitution.
14
Having found that the provisions were unconstitutional, the High
Court investigated the question of remedy. While it accepted
that
the applicants were entitled to a remedy that effectively vindicates
their rights, it took account of the information placed
before it by
the Fund, regarding the impact which an order of invalidity with
immediate effect would have on the financial viability
of the Fund.
After weighing various considerations the High Court issued the
following order:
“
(1) It is declared that
sections 18(1)(a)(i)
and
18
(1)(b) of the
Road Accident Fund Act 56 of
1996
, as they stood prior to 1 August 2008, were inconsistent with
the Constitution and invalid.
(2) It is declared that
section 18(2)
of the
Road
Accident Fund Act 56 of 1996
, as it stood prior to 1 August 2008, was
inconsistent with the Constitution and invalid.
(3) Such declarations of invalidity will apply to and
govern all claims instituted or to be instituted under the Road
Accident Fund
Act 56 of 1996, which at the date of this order:
(a) have not prescribed; and
(b) have not been finally determined by judgments at
first instance or on appeal; and
(c) have not been finally determined by settlement
duly concluded.
(4) All such
claims referred to in para 3 above shall qualify for no greater
compensation than that which would accrue under the
provisions of the
Road Accident Fund Amendment Act, 19 of 2005
, as it stood on
1
August 2008.
(5) This order is referred to the Constitutional
Court for confirmation of the order of constitutional invalidity.
(6) The
respondents are ordered, jointly and severally, to pay the costs of
this application, including the costs of the expert
witness Munro.
”
In this Court
The first issue is whether the impugned provisions limit the
applicants’ equality rights entrenched in section 9 of the

Constitution. If the answer to this question is in the affirmative,
the next issue is whether that limitation is justified. If
not the
question that arises is what would constitute an appropriate remedy
which vindicates the rights.
15
In determining the first question it is convenient to begin with the
interpretation of the impugned provisions. Once their true
meaning
is established, it must be measured against the terms of section 9
of the Constitution.
The Interpretation of Section 18 of the Act
The Act constitutes social security legislation whose primary object
has been described as “to give the greatest possible

protection . . . to persons who have suffered loss through a
negligent or unlawful act on the part of the driver or owner of
a
motor vehicle”.
16
By placing a cap of R25 000 on certain claims, section 18 undermines
this purpose.
17
What emerges from the section is that it has a disparate impact. In
the main it targets those workers and the class of people
who use
public transport such as taxis and buses. For the limitation to be
triggered, the fault of the driver or owner of the
vehicle in which
the affected passenger was, must have been the sole cause of the
accident. If two or more vehicles were involved
and no less than two
drivers contributed to the accident, albeit to varying degrees, the
limitation does not apply. Passengers
of these drivers would be
entitled to full compensation under the Act.
18
Section 18 creates six categories of passengers whose claims are
subject to the cap. These are passengers conveyed for reward;
19
passengers carried for purposes of a lift club;
20
passengers conveyed in the course of the lawful business of the
owner of the vehicle;
21
passengers who were employees of the driver or the owner of the
vehicle and were transported in the course of their employment,
22
passengers who were conveyed under circumstances other than those
referred to in section 18(1)(a)
23
and employees who are entitled to compensation in terms of COIDA.
24
Is Section 18 of the Act Inconsistent with Section 9 of the
Constitution?
Invoking section 9 of the Constitution the applicants attack the
impugned provisions on two bases. First, they argue that these

provisions are arbitrary. Secondly, they submit that the provisions
amount to unfair discrimination which contravenes section
9(3) of
the Constitution. In support of the latter claim the applicants have
alleged that the majority of claimants affected
by the impugned
provisions are mainly black working people, who rely on public
transport. The respondents conceded that these
provisions are
inconsistent with section 9. But before this Court confirms the
invalidity order it must be satisfied that the
impugned provisions
are at odds with the Constitution.
Section 9 provides:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2) Equality includes the full
and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.
(3) The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and birth.
(4) No person may unfairly
discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3).
National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or
more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination
is fair.”
The correct approach to a constitutional challenge based on the
equality clause was summarised in
Harksen v Lane NO and Others
25
as follows:
“
(a)
Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational connection
to
a legitimate government purpose? If it does not then there is a
violation of s 8(1). Even if it does bear a rational connection,
it
might nevertheless amount to discrimination.
(b) Does the differentiation
amount to unfair discrimination? This requires a two-stage analysis:
(i) Firstly, does the
differentiation amount to ‘discrimination’? If it is on a
specified ground, then discrimination
will have been established. If
it is not on a specified ground, then whether or not there is
discrimination will depend upon whether,
objectively, the ground is
based on attributes and characteristics which have the potential to
impair the fundamental human dignity
of persons as human beings or to
affect them adversely in a comparably serious manner.
(ii) If the differentiation
amounts to ’discrimination’, does it amount to ‘unfair
discrimination’? If it
has been found to have been on a
specified ground, then unfairness will be presumed. If on an
unspecified ground, unfairness will
have to be established by the
complainant. The test of unfairness focuses primarily on the impact
of the discrimination on the
complainant and others in his or her
situation. If, at the end of this stage of the enquiry, the
differentiation is found not to
be unfair, then there will be no
violation of s 8(2).
(c) If the
discrimination is found to be unfair then a determination will have
to be made as to whether the provision can be justified
under the
limitations clause (s 33 of the interim Constitution).
”
Although this test
was formulated with reference to the interim Constitution it has been
applied to challenges based on section
9.
26
Proof of infringement of either section 9(1) or 9(3) will justify a
declaration of constitutional invalidity. Therefore it is
not
necessary to begin with the rational connection enquiry if a court
holds that the discrimination is unfair and unjustifiable.
27
Having regard to the view I take of the challenge based on section
9(3), I propose to consider it first.
As mentioned earlier the impugned provisions limit compensation
payable to the applicants and similarly placed victims to R25 000

regardless of the extent of the loss suffered. It cannot be gainsaid
that by placing this cap on recoverable compensation the
provisions
treat these victims differently from other claimants whose claims
are not limited. The question that arises is whether
the
differentiation constitutes unfair discrimination envisaged in
section 9(3).
Unfair Discrimination
The applicants have placed on record uncontested evidence to the
effect that the impugned provisions overwhelmingly affect poor
black
people. They state that the vast majority of poor people in this
country are black people and the mode of transport accessible
to
them is public transport consisting of, amongst others, taxis and
buses. They claim that the provisions impact disproportionately
on
black people.
It will be observed that the applicants do not assert that the
impugned provisions discriminate against black people in a manner

that is direct. Indeed they could not make the assertion because the
provisions do not expressly place a cap on claims by black
people.
Instead it applies to claims of the categories of victims mentioned
in paragraph 22 above. What is established by the
applicants’
evidence though is the fact that at a practical level the majority
of the victims affected by the cap are black
people. This in turn
shows that indirectly the provisions discriminate against black
people in a manner that is disproportionate
to other races.
Section 9(3) prohibits discrimination irrespective of whether it is
direct or indirect. In
Pretoria City Council v Walker
28
this Court had an occasion to consider an equality claim based on
indirect discrimination on the ground of race. In that case
the
Pretoria City Council applied different tariffs for electricity and
water consumed in different parts of the municipal area.
Higher
tariffs were levied in historically white areas which were populated
overwhelmingly by white residents, while lower charges
were paid by
residents of historically black areas which were overwhelmingly
occupied by black people. A resident of the historically
white area
claimed that by exacting higher charges the City Council had
infringed his right to equality.
Confirming an equality claim based on indirect discrimination, Langa
DP stated:
29
“
It is
sufficient for the purposes of this judgment to say that this conduct
which differentiated between the treatment of residents
of townships
which were historically black areas and whose residents are still
overwhelmingly black, and residents in municipalities
which were
historically white areas and whose residents are still overwhelmingly
white constituted indirect discrimination on the
grounds of race. The
fact that the differential treatment was made applicable to
geographical areas rather than to persons of a
particular race may
mean that the discrimination was not direct, but it does not in my
view alter the fact that in the circumstances
of the present case it
constituted discrimination, albeit indirect, on the grounds of race.”
To the extent that the impugned provisions in this case
overwhelmingly affect black people, they create indirect
discrimination
that is presumptively unfair. This is so because the
discrimination is based on one of the grounds listed in section
9(3). Absent
a rebuttal of this presumption from the respondents, I
have to accept that the type of discrimination we are concerned with
here
is indeed unfair.
But the impugned provisions do constitute discrimination on another
basis. There can be little doubt that the cap imposed by
these
provisions affects the applicants and other similarly situated
victims adversely when compared to the claimants whose claims
are
not limited. In some matters the limited amount of R25 000, as
the present facts demonstrate, cover medical costs only
and
sometimes not even the entire costs.
Where victims were workers whose bodily injuries have rendered them
unemployable, the cap denies them compensation for the loss
of
capacity to work. Consequently they may not even afford the basic
necessities of life such as food and shelter. This is the
situation
in which they find themselves even though they played no role in
causing the accident. Moreover other victims who were
also
passengers like themselves enjoy full compensation for their loss
only because they fall outside the targeted categories.
This is
manifestly unfair. In the circumstances I am satisfied that the
impugned provisions discriminate unfairly against the
applicants.
The issue that remains to be considered is whether this
discrimination is justified.
Justification Analysis
The question is whether it has been shown that the cap imposed by
the impugned provisions is reasonable and justifiable in an
open and
democratic society based on human dignity, equality and freedom.
30
The sole reason advanced for the cap is that passengers affected by
it would have chosen the driver or owner of the offending
vehicle.
From this it is to be inferred that these passengers have themselves
to blame if their chosen driver or vehicle ended
up in an accident.
But no evidence was placed on record to support the proposition that
the affected passengers can choose the driver or owner of
a taxi.
Commuters do not dictate to those who provide public transport which
driver they would like to have. Nor, as it was observed
by the High
Court, do they ordinarily have knowledge of the driver’s
competence or the roadworthiness of the vehicle.
Moreover it is unfair for the Act to permit full compensation where
two drivers have negligently contributed to an accident while
at the
same time denying full compensation where the sole cause of the
accident is the negligence of one driver. In both instances
no fault
can be attributed to passengers. The passengers affected by the cap
are as innocent as those whose claims are not limited.
While it may be legitimate for the State to limit compensation
accruing to victims of motor vehicle accidents, it has failed
to
show why the applicants ought to be singled out in pursuit of this
purpose. There is nothing on record which indicates that
the unfair
discrimination the applicants are subjected to is “reasonable
and justifiable in an open and democratic society
based on human
dignity, equality and freedom”. Accordingly I find that the
impugned provisions are inconsistent with section
9(3) of the
Constitution. It follows that the invalidity order issued by the
High Court must be confirmed.
Remedy
As the High Court remarked, correctly so in my view, the real
dispute between the parties relates to the question of remedy.
Each
side urged us to grant the remedy which will advance its interests.
But before I consider this issue it is necessary to
restate the
correct approach to relief, following a declaration of
constitutional invalidity.
The Correct Approach
The correct approach to the question of remedy in cases where an
order of constitutional invalidity is contemplated is the following.

If the Court finds the challenged legislative provision to be
inconsistent with the Constitution, section 172(1) of the
Constitution
31
obliges the Court to declare such provision invalid to the extent of
the inconsistency. Thereafter the Court must make an order
that is
just and equitable which may include limiting the retrospective
effect of the invalidity order or its suspension. Counsel
for the
respondents urged us not to follow this approach in so far as the
determination of a just and equitable order is concerned.
Proceeding from the premise that Parliament has already cured the
defect in section 18,
32
counsel argued that the proper way to approach the issue of remedy
is not to enquire into what would in the present circumstances
be
just and equitable relief. Instead, so it was submitted, the
question is whether the cure preferred by Parliament is
constitutionally
deficient or incompetent. If it is competent and
adequate, the enquiry on remedy ought to be closed without adding
anything to
Parliament’s choice. The question of a just and
equitable remedy, it was submitted, will only arise if the Court
finds
that the preferred cure is not competent.
Expanding on this argument, the respondents submitted that section
12 of the Amendment Act
33
demonstrates that Parliament has decided to address the inequality
brought about in two ways. It removed the differentiation
caused by
the cap prospectively and regarding claims that arose before the
Amendment Act came into force, Parliament has decided
to retain the
old scheme which retains the inequality.
The effect of this argument is that in spite of acknowledging the
inequality caused by the cap and seeking to cure it by amending
the
offending legislation, Parliament nevertheless decided that those
whose claims arose before the amendment must continue to
suffer the
inequality. For the following reasons this argument is, in my view,
flawed. First, there is no evidence that when
the Amendment Act was
passed, Parliament deliberately took a decision to withhold a remedy
to all victims whose claims arose
before the Amendment Act came into
force. It may well be that a remedy was not provided due to an
oversight on the part of Parliament.
Counsel for the respondent
conceded this possibility.
Secondly, the cap which limits the quantum of compensation to which
the applicants and similarly placed victims are entitled,
continues
to operate by virtue of the impugned provisions. Once these
provisions are declared invalid the cap falls away unless
this Court
suspends the order of invalidity or restricts its retrospective
effect. Ordinarily an order of constitutional invalidity
has a
retrospective effect unless its operation is suspended. In terms of
the doctrine of objective constitutional invalidity,
unless ordered
otherwise by the court the invalidity operates retrospectively to
the date on which the Constitution came into
force.
34
But if the legislation in question was enacted after that date, as
was the present Act, the retrospective operation of invalidity
goes
back to the date on which the legislation came into force. The
consequence of this for present purposes is that the applicants

would be entitled to full compensation as if the cap never came into
existence.
Thirdly, section 172(1) of the Constitution
35
enjoins the Court to make a just and equitable order, following a
declaration of invalidity. Depending on the circumstances of
the
case, such order may include an order limiting the retrospective
effect of the declaration of invalidity or suspension to
allow a
competent authority to correct the defect. In this case there is
evidence which warrants the determination of a just
and equitable
order.
Just and Equitable Order
Unless the interests of justice and good government dictate
otherwise, the applicants are entitled to the remedy they seek

because they were successful.
36
Having established that the impugned provisions violate their rights
entrenched in the Bill of Rights, they are entitled to a
remedy that
will effectively vindicate those rights. The Court may decline to
grant it only if there are compelling reasons for
withholding the
requested remedy. Indeed the discretion conferred on the courts by
section 172(1) must be exercised judiciously.
As stated earlier, the impugned provisions mostly affect poor people
who rely on public transport for travelling. Ordinarily
these people
do not have a source of income other than selling their labour in
the job market. As it was the position in Ms Mvumvu’s
case,
injuries which render them unemployable take away that source of
income. This situation is made worse by the fact that
the provisions
in question deny them compensation for loss of income or earning
capacity without giving them something in exchange.
In our young democracy and because of our history, which was
characterised by inequalities and discrimination, constitutional

breaches such as the present must be redressed effectively by, where
possible, vindicating the infringed rights fully. This Court
in
Fose
v Minister of Safety and Security
37
said:
“
Given
the historical context in which the interim Constitution was adopted
and the extensive violation of fundamental rights which
had preceded
it, I have no doubt that this Court has a particular duty to ensure
that, within the bounds of the Constitution, effective
relief be
granted for the infringement of any of the rights entrenched in it.
In our context an appropriate remedy must mean an
effective remedy,
for without effective remedies for breach, the values underlying and
the right entrenched in the Constitution
cannot properly be upheld or
enhanced. Particularly in a country where so few have the means to
enforce their rights through the
courts, it is essential that on
those occasions when the legal process does establish that an
infringement of an entrenched right
has occurred, it be effectively
vindicated. The courts have a particular responsibility in this
regard and are obliged to ‘forge
new tools’ and shape
innovative remedies, if needs be, to achieve this goal.”
However, in determining a suitable remedy, the courts are obliged to
take into account not only the interests of parties whose
rights are
violated, but also the interests of good government.
38
These competing interests need to be carefully weighed.
In this case, the respondents have presented evidence which shows
that an order of invalidity with unlimited retrospective effect
will
increase the Fund’s financial liability by approximately R3
billion. The respondents argue that this will pose a serious
threat
to the sustainability of the Fund whose deficit at present stands at
over R40 billion. The Chief Executive Officer of
the Fund has
asserted that the Fund is “just barely able to cover its
payment obligations on a day to day basis.”
In the light of the facts mentioned above, an unlimited
retrospective order of invalidity is likely to have a crippling
effect
on the Fund’s operation. It must be recalled that the
Fund provides social security insurance without which all road users

would be left with no cover for loss sustained in motor vehicle
accidents. This is an important consideration.
The respondents were not required to show the potential risk of the
Fund collapsing in order to persuade this Court to intervene
and
adjust the effects of the order of invalidity. It was sufficient for
them to show that the order will have serious budgetary

implications. This Court has cautioned against remedies that are
likely to lead to an “unsupportable budgetary intrusion”.
39
Two reasons motivate this approach. First, budget matters fall
eminently within the domain of the legislature and the executive.

Secondly, ordinarily courts are ill-suited to determine such
matters.
40
The considerations mentioned above point to the fact that Parliament
is best suited to determine the extent of compensation to
which the
applicants are entitled. It is regrettable that when Parliament
decided to cure the defect, it left their position
unaltered.
Nonetheless I am of the view that the matter must be remitted to
Parliament for it to provide relief for the inequality
which the old
scheme continues to cause. Therefore, I intend to suspend the
invalidity order for 18 months to give Parliament
the opportunity to
fix the problem.
But if Parliament fails to cure the defect within the period stated
above, the invalidity order will come into operation with
immediate
effect and it will operate retrospectively to the date on which the
Act came into force. What this means is that the
applicants will be
entitled to unlimited compensation as if the cap was never enacted.
However, the declaration of invalidity
ought not to apply to claims
in respect of which a final settlement has been reached or a final
judgment has been granted, before
the date of this judgment.
Before I consider the question of costs I need to mention one
matter. Apart from the impugned provisions there are others imposing

similar caps. These provisions are not covered by the declaration of
invalidity to be issued in this matter. But they suffer
from the
same defect. They are section 18(1)(a)(ii), section 18(1)(a)(iii)
and section 18(1)(a)(iv) of the Act.
41
When deciding the amount of compensation to which the applicants are
entitled, it is desirable that Parliament address the plight
of
those affected by these subsections as well.
Costs
The applicants have successfully challenged the constitutionality of
the provisions in question and therefore they are entitled
to costs
of the proceedings. The costs must follow the cause.
Order
The following order is made:
It is declared that
sections 18(1)(a)(i)
,
18
(1)(b) and
18
(2) of the
Road Accident Fund Act 56 of 1996
, as they read before 1 August
2008, are inconsistent with the Constitution and invalid.
The declaration of invalidity referred to in paragraph 1 above is
suspended for 18 months from the date of this order, to enable

Parliament to cure the defect.
In the event of the declaration of invalidity coming into force
without Parliament having cured the defect, the order of invalidity

will not apply to claims in respect of which a final settlement has
been reached or a final judgment has been granted, before
the date
of this order.
The costs order granted by the High Court is confirmed.
The respondents are ordered to pay the costs of proceedings in this
Court, jointly and severally.
Ngcobo CJ,
Moseneke DCJ, Brand AJ, Cameron J, Froneman J,
Khampepe J,
Mogoeng J, Nkabinde J, and
Skweyiya J
concur in the judgment
of Jafta J.
For the Applicants: Advocate G Budlender SC instructed by Kruger &
Co.
For the Respondents: Advocate W Trengove SC and Advocate S Budlender,
instructed by the State Attorney, Johannesburg, for the
first
respondent, and Edward Nathan Sonnenbergs Inc for the second
respondent
1
56
of 1996.
2
The
full text of the provision is set out at n 17 below.
3
19
of 2005.
4
Mvumvu
and Others v Minister of Transport and Another
, 28 June 2010,
Case number 7490/2008, unreported, per Bozalek J.
5
The
order is quoted below at [18].
6
For
the text of the provision see n 17 below.
7
Section
18(1)(a)(i) of the Act limits the liability of the Fund with respect
to persons injured while being conveyed “for
reward”;
see n 17 below.
8
130
of 1993.
9
Entrenched
in section 9 of the Constitution.
10
Entrenched
in section 10 of the Constitution.
11
Entrenched
in section 12 read with section 38 of the Constitution.
12
Entrenched
in section 27 of the Constitution.
13
Section
12 provides:
“
Any claim for compensation
under section 17 of the principal Act in respect of
which the cause of action arose prior to the date on
which this Act took effect must be
dealt with as if this Act had not
taken effect.
”
14
Section
36(1) provides:
“
(1) The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
15
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997
(11) BCLR 1489
(CC).
16
Engelbrecht
v Road Accident Fund and Another
[2007] ZACC 1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC) at para 23.
17
In
the unamended form section 18 provides:
“
(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 No. 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 motor vehicle; or
(iii) in the case of an employee of the driver or owner
of that 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 the 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
No. 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...”.
18
See
section 17 read with sections 18 and 19 of the Act.
19
Section
18(1)(a)(i).
20
Section
18(1)(a)(iv).
21
Section
18(1)(a)(ii).
22
Section
18(1)(a)(iii).
23
Section
18(1)(b).
24
Section
18(2).
25
Above
n 15 at para 54.
26
Van
der Merwe v Road Accident Fund and Another (Women’s Legal
Centre Trust as Amicus Curiae)
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC).
27
National
Coalition of Gay and Lesbian Equality and Others v Minister of
Justice and Others
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12)
BCLR 1517
(CC) at para 18.
28
[1998]
ZACC 1
;
1998 (2) SA 363
(CC);
1998 (3) BCLR 257
(CC).
29
Id
at para 32.
30
S
v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001
(3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 48
.
31
The
full text of the subsection appears in n 35 below.
32
The
Amendment Act abolished the R25 000 cap and replaced it with a
general limitation that applies to all claimants. As a result

claimants receive an equal amount of compensation, determined in
accordance with the seriousness of their injuries.
33
Above
n 13.
34
In
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) this Court said at para 28:
“
A pre-existing law which was
inconsistent with the provisions of the Constitution became invalid
the moment the relevant provisions
of the Constitution came into
effect. The fact that this Court has the power in terms of s 98(5)
of the Constitution to postpone
the operation of invalidity and, in
terms of s 98(6), to regulate the consequences of the invalidity,
does not detract from the
conclusion that the test for invalidity is
an objective one and that the inception of invalidity of a
pre-existing law occurs
when the relevant provision of the
Constitution came into operation. The provisions of s 98(5) and (6),
which permit the Court
to control the result of a declaration of
invalidity, may give temporary validity to the law and require it to
be obeyed and
persons who ignore statutes that are inconsistent with
the Constitution may not always be able to do so with impunity.”
See also
Van der
Merwe v Road Accident Fund and Another
above n 26 at para 77.
35
Section
172(1) provides:
“
(1) When deciding a
constitutional matter within its power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order
suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority
to correct the defect.”
36
S
v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32.
37
[1997]
ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 69.
38
S
v Bhulwana; S v Gwadiso
above n 36 at para 32.
39
Tsotetsi
v Mutual & Federal Insurance Co Ltd
[1996] ZACC 19
;
1997 (1)
SA 585
(CC);
1996 (11) BCLR 1439
(CC) at para 9;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1)
BCLR 39
(CC) at para 75;
Van der Merwe v Road Accident Fund and
Another
above n 26 at para 73 and
Shinga v The State and
Another (Society of Advocates, Pietermaritzburg Bar as Amicus
Curiae); O’Connell and Others v The
State
[2007] ZACC 3
;
2007 (4) SA 611
(CC);
2007 (5) BCLR 474
(CC) at para 56.
40
Soobramoney
v Minister of Health, KwaZulu-Natal
[1997] ZACC 17
;
1998 (1) SA
765
(CC);
1997 (12) BCLR 1696
(CC) at paras 29 and 58;
Minister
of Health and Others
v
Treatment Action Campaign and Others
(No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 10 BCLR 1033
(CC) at paras 37-8 and
Mazibuko and Others v City of Johannesburg
and Others
[2009] ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR
239
(CC) at para 61.
41
See
n 17 above.