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[2014] ZACC 21
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Da Silva v Road Accident Fund and Another (CCT 29/14) [2014] ZACC 21; 2014 (8) BCLR 917 (CC); 2014 (5) SA 573 (CC) (19 June 2014)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 29/14
In
the matter between:
VANESSA
DA
SILVA
...............................................................................................................
Applicant
and
ROAD
ACCIDENT
FUND
...........................................................................................
First
Respondent
MINISTER
OF
TRANSPORT
.................................................................................
Second
Respondent
Neutral
citation:
Da Silva v Road Accident
Fund and Another
[2014] ZACC 21
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen J and
Zondo J
Decided
on:
19 June 2014
Summary:
Road Accident Fund Act 56 of 1996
—
constitutionality of
section 19(b)(ii)
prior to 2008 amendment —
section is unconstitutional
Section
9 of the Constitution — unfair discrimination —
section 19(b)(ii) fails the
Harksen
test
ORDER
Application
for confirmation of the order of the Free State High Court,
Bloemfontein declaring that
section 19(b)(ii)
of the
Road Accident
Fund Act 56 of 1996
, as it read prior to 1 August 2008, is
inconsistent with the Constitution and invalid:
1.
The order made by the Free State High Court, Bloemfontein is
confirmed.
2.
The respondents are ordered to pay the applicant’s costs,
including the costs of two counsel.
JUDGMENT
FRONEMAN
J (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga
J, Majiedt AJ, Van der Westhuizen J and Zondo J concurring):
[1]
The
applicant (Ms da Silva) seeks confirmation of an order of
constitutional invalidity granted by the Free State High Court,
Bloemfontein
(High Court).
[1]
The respondents, the Road Accident Fund (RAF) and the Minister,
do not oppose the relief.
[2]
This Court must nevertheless make its own determination of the
constitutional validity of the provision at stake.
[3]
[2]
The
provision declared invalid is
section 19(b)(ii)
of the
Road Accident
Fund Act
[4
]
as it stood before 1
August 2008 (old Act). It reads in relevant part:
“
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—
.
. .
(ii)
is a person referred to in section 18(1)(b)
[5]
and a member of the household, or responsible in law for the
maintenance, of the driver of the motor vehicle concerned, and was
being conveyed in or on the motor vehicle concerned”.
[3]
Ms da Silva was severely injured in a motor
vehicle accident on 29 April 2006 in which she was a passenger. The
motor vehicle
was driven by her husband. It was common cause
that the sole cause of the collision was the negligence of her
husband, who
collided with a horse. The provision precluded her
from claiming damages from the RAF under the old Act.
[4]
Despite
two later amending Acts, Ms da Silva remained without remedy. In
2005 the Road Accident Fund Amendment Act
[6]
(Amendment Act) was passed. The Amendment Act repealed section
19(b)(ii), but the section continued to apply to claims against
the
RAF where, as in the case of Ms da Silva, the cause of action arose
before 1 August 2008.
[7]
In
2012 the Road Accident Fund (Transitional Provisions) Act
[8]
(Transitional Act) was passed. It followed this Court’s
decision in
Mvumvu
.
[9]
The Transitional Act sought to remedy the constitutional flaws
in section 18 of the old Act, but does not deal with
persons
whose claims are excluded by section 19 of that Act.
[10]
[5]
Ms
da Silva challenged the constitutionality of section 19(b)(ii) in the
High Court, primarily on the grounds that it violated her
right to
equality. The High Court upheld her challenge.
[11]
In relevant part, the order reads as follows:
“
66.1
It is declared that
section 19(b)(ii)
of the
Road Accident Fund Act
56 of 1996
, as it read prior to 1 August 2008, is inconsistent with
the Constitution and invalid.
66.2
The order in paragraph 66.1 above does not apply to claims in respect
of which a final settlement has been reached or which
have prescribed
or in which a final judgment has been granted, before the date of
confirmation of this order by the Constitutional
Court.
66.3
Claims to which the order in paragraph 66.1 applies shall be governed
by the
Road Accident Fund (Transitional Provisions) Act 15 of 2012
,
provided that in respect of such claims the period of one year
contemplated in
section 2
of the Act shall not commence running
before the date of confirmation of this order by the Constitutional
Court.
66.4
Upon confirmation of the invalidity of
section 19(b)(ii)
of the
Road
Accident Fund Act 56 of 1996
, as it read prior to 1 August 2008, by
the Constitutional Court, the Road Accident Fund is directed within
14 days to:
66.4.1
Pay an amount of R4 014 079.90 to the applicant; and
66.4.2
Issue the applicant with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.”
I
agree with the High Court’s findings.
[6]
Notwithstanding that a driver is to blame
for an accident, the effect of
section 19(b)(ii)
of the old Act
is that claims for compensation against the RAF are excluded where
the claimant, a passenger, was a member of the
driver’s
household or owed that driver a duty of support. Conversely, if
the passenger was not a member of the driver’s
household or a
person owing a duty of support to the driver, compensation would be
payable.
[7]
The
provision differentiates between categories of people, namely those
who stand in a close familial relationship with the driver
and those
who do not. Spouses and children are the most likely to be
excluded from the Act’s protection. It is
difficult to
discern a rational connection between the differentiation and a
legitimate government purpose, as required at the
first stage of the
discrimination enquiry.
[12]
The RAF and Minister referred, in their written submissions, to
the explanation apparently offered in Parliament in 1980,
[13]
namely that it was inserted to prevent fraudulent claims resulting
from collusion between members of households, but disavowed
any
reliance on it for present purposes.
[8]
Even
if a rational connection is assumed, the differentiation amounts to
indirect discrimination on the basis of marital status
and age.
[14]
Spouses and children are those who would be most affected by
the application of the provision. As the discrimination
is on
grounds listed in section 9(3) of the Constitution, it is thus
presumptively unfair.
[15]
Neither the RAF nor the Minister ever sought to rebut this.
And there is nothing further to justify any rebuttal.
[9]
For the purpose of confirmation it is not
necessary to go into the other alleged grounds of invalidity, namely
infringements of
the rights to dignity, health care services and
social security, relied upon by the High Court. They are all in
some way
or another connected to the primary ground of unfair
discrimination.
[10]
That
leaves the question of remedy. Again, the Minister and the RAF
do not object to the order sought and made in the High
Court. The
order is not an unlimited order of retrospectivity. It
restricts claims to those that are pending and that
have not yet
prescribed. These claims will be subject to the provisions of
the Transitional Act. The period of a year
for an election to
be made under section 2 of the Transitional Act
[16]
shall not commence until the date of this order. The order
balances the rights of road accident victims with the financial
consequences for the RAF.
Order
[11]
The following order is made:
1.
The order made by the Free State High Court, Bloemfontein is
confirmed.
2.
The respondents are ordered to pay the applicant’s costs,
including the costs of two counsel.
For
the Applicant:
Advocate
A Annandale SC and Advocate Z Pretorius instructed by A C
de Sousa Attorneys.
For
the First Respondent:
Advocate
S Budlender instructed by Hogan Lovells (South Africa).
For
the Second Respondent:
Advocate
S Budlender instructed by the State Attorney.
[1]
In
terms of section 167(5) of the Constitution.
[2]
Da
Silva v Road Accident Fund and Another
[2013]
ZAFSHC 188
(High Court judgment). In the High Court the RAF
and the Minister filed affidavits agreeing that the provision is
constitutionally
invalid and that the relief sought constitutes just
and equitable relief in terms of section 172(1)(b) of the
Constitution.
Written submissions were requested from the
parties in this Court, where their earlier stance was confirmed.
[3]
Phillips
and Another v Director of Public Prosecutions, Witwatersrand Local
Division, and Others
[2003] ZACC 1
;
2003 (3) SA 345
(CC);
2003 (4) BCLR 357
(CC) at paras
8-9.
[4]
56
of 1996.
[5]
Broadly,
s
ection
18(1)(b)
refers
to private persons, rather than commercial passengers, being
conveyed, for example, as part of their employment.
This
provision does not therefore apply to claims in terms of
section 18(1)(a) where the passenger was conveyed: for reward;
in the course of the lawful business of the owner of the motor
vehicle; as an employee acting in the course and scope of his
or her
employment; or as part of a lift club. Passenger claims in
this category are capped at an amount 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 person, excluding the payment of compensation
in respect of
any other loss or damage.”
[6]
19
of 2005.
[7]
Section
12 read with the Proclamation of the Road Accident Fund Amendment
Act, 2005 (Act 19 of 2005), GN R8927,
Government
Gazette
31249, promulgated on 21 July 2008.
[8]
15
of 2012.
[9]
Mvumvu
and Others v Minister for Transport and Another
[2011] ZACC 1; 2011 (2) SA 473 (CC); 2011 (5) BCLR 488 (CC).
[10]
Persons
in the position of Ms da Silva are excluded because the definition
of “third party” in the Transitional Act
refers only to
“a person who has a right to claim compensation from the Fund
in terms of section 17 of the old Act”.
Section
19(b)(ii) excluded Ms da Silva from claiming compensation from the
RAF under the old Act.
[11]
High
Court judgment above n 2 at paras 38-52.
[12]
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) at
para 54.
[13]
See
Hodes
Suzman,
Gordon and Hodes on the Law of Compulsory Motor Vehicle Insurance in
South Africa
3 ed (Juta & Co Ltd, Cape Town 1982) at 193. See also
Klopper
The
Law of Third Party Compensation in terms of the
Road Accident Fund
Act 56 of 1996
2 ed (LexisNexis, Durban 2008) at 133.
[14]
Section
9(3) of the Constitution provides:
“
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.”
[15]
Section
9(5) of the Constitution provides:
“
Discrimination
on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination
is fair.”
And
see
Mvumvu
above n 9 at para 32, where the provisions of
parts of section 18 of the old Act were held to operate mainly
against black people
and thus to constitute presumptively unfair
discrimination based on race.
[16]
Section
2 of the Transitional Act reads:
“
Unless
the third party expressly and unconditionally indicates to the fund
in the prescribed form, within one year of this Act
taking effect,
to have his or her claim remain subject to the old Act, the claim of
such third party is subject to the [Amendment]
Act”.