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[2018] ZASCA 94
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Road Accident Fund v Masindi (586/2017) [2018] ZASCA 94; 2018 (6) SA 481 (SCA) (1 June 2018)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 586/2017
In
the matter between:
ROAD
ACCIDENT
FUND
APPELLANT
and
KHATHUTSHELO
GLADYS MASINDI
RESPONDENT
Neutral
citation:
Road
Accident Fund v Masindi
(586/2017)
[2018] ZASCA 94
(1 June 2018)
Bench:
Shongwe
ADP, Majiedt, Swain and Mocumie JJA and Rogers AJA
Heard:
18
May 2018
Delivered:
1
June 2018
Summary:
Road
Accident Fund Act 56 of 1996
as amended by the
Road Accident Fund
Amendment Act 19 of 2005
– s 23(3) of the RAF Act
–
statutory
interpretation – s 4 of the Interpretation Act 33 of 1957 –
regulation 1 under the RAF Act – whether
a claim that was due
to be served on the last day of the five year prescription period
which last day fell on a public holiday
had prescribed –
application of s 34 and s 39 of the Constitution –
consideration of foreign law.
ORDER
On
appeal from
:
Gauteng Local Division of the High Court, Johannesburg (Mbongwe AJ
sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Mocumie
JA (Shongwe ADP, Majiedt, Swain, JJA and Rogers AJA concurring):
[1]
This appeal concerns the question of how the five year prescription
period applicable to the respondent’s claim should
be computed,
in circumstances where the last day of the five year period, strictly
calculated, falls on a day when the court is
closed so that summons
cannot be issued and served.
In the
present case, the last day fell on Monday, 16 June 2014, a public
holiday, so the court was closed. The court was also closed
on the
preceding Saturday and Sunday. The last day on which the court was
open during the five-year period, strictly computed,
was Friday, 13
June 2014.
[2]
Before I proceed to deal with the merits there is one preliminary
issue that requires attention first: the application for the
late
filing of the notice of appeal by the appellant. On 12 June 2015, the
high court dismissed the special plea of the appellant
with costs. On
31 July 2015, the high court granted leave to appeal. On 19 April
2017 (21 months later), the one month prescribed
by rule 7 of the
Rules Regulating the Conduct of the Proceedings of the Supreme Court
of Appeal for lodging/filing the notice of
appeal,
the
appellant filed its notice of appeal and application for condonation
citing numerous unsatisfactory reasons. The respondent
was unhappy
about this lateness. However, because of the importance of the issues
in this matter and the fact that this court is
not in agreement with
the reasoning of the high court – although in agreement with
the order granted – the application
for condonation is granted.
[3]
The factual background is as follows. On 17 June 2009, the
respondent, Ms Khathutshelo Gladys Masindi, had her minor daughter
on
her back when she was hit by the insured vehicle. As a consequence of
the negligence of the insured driver, she and her minor
child
suffered severe bodily injuries. Subsequently, in June 2014, the
respondent (as plaintiff) instituted an action against the
appellant
in the high Court for compensation arising out of the accident in
terms of s 17(1) of the Road Accident Fund Act 56 of
1996 (the RAF
Act). It was alleged in her particulars of claim that she had
suffered severe bodily injuries and consequently suffered
damages
estimated at R 1 950 000. Initially the appellant filed a
plea to the respondent’s particulars of claim.
But it
subsequently added a special plea of prescription. The appellant
conceded the merits and reached a settlement on both the
merits and
quantum, slightly adjusted to one million rand. Thereafter, the high
court only adjudicated upon the special plea of
prescription. On 12
June 2015, the special plea came before the high court for
determination. The high court dismissed the appellant’s
special
plea with costs. It found that the strict and literal interpretation
of s 23(3) of the RAF Act propounded by the appellant
did not accord
with justice; that it could not have been the intention of the
legislature to deprive the plaintiff of her full
prescription period
of five years. It applied s 4 of the Interpretation Act 33 of 1957
(the Interpretation Act) citing in support
of its approach this
court’s judgment in
Nedcor
Bank Ltd v The Master of the High Court (Pretoria) & others.
[1]
Aggrieved
by the dismissal of its special plea, the appellant appeals with
leave of the high court.
[4]
The appeal turns on the correct interpretation of s 23(3) of the RAF
Act and the essential issue in this court, as it was in
the high
court, is how the five year prescription period applicable to the
respondent’s claim should be computed.
[5]
It is convenient to set out the relevant provisions of the RAF Act
which are contained in ss 17 and 23. It is also apposite
at this
stage to refer to s 4 and regulation 1 under the RAF Act. The
gateway for compensation under the
RAF
Act is s 17(1) which establishes the liability of the appellant
to compensate third parties for damages arising from the
driving of a
motor vehicle.
[2]
Section
23 of the RAF Act regulates the prescription of claims under the Act.
Section 4 of the Interpretation Act sets out the reckoning
or
computation of a period expressed in a number of days; contrasted to
other methods.
[3]
Regulation
1 under the RAF Act
[4]
explains
what ‘a day’ entails when interpreting s 4 of the same
Act.
[6]
Section 17(1) reads:
‘
The
Fund or an agent shall – (a) subject to this Act, in the case
of a claim for compensation under this section arising from
the
driving of a motor vehicle where the identity of the owner or the
driver thereof has been established; (b) subject to any regulation
made under section 26, in the case of a claim for compensation under
this section arising from the driving of a motor vehicle where
the
identity of neither the owner nor the driver thereof has been
established, be obliged to compensate any person (the third party)
for any loss or damage which the third party has suffered as a result
of any bodily injury to himself or herself or the death of
or any
bodily injury to any other person, caused by or arising from the
driving of a motor vehicle by any person at any place within
the
Republic, if the injury or death is due to the negligence or other
wrongful act of the driver or of the owner of the motor
vehicle or of
his or her employee in the performance of the employee’s duties
as employee: 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…’
[7]
Section 23 reads:
‘
(1)
Notwithstanding anything to the contrary in any law contained, but
subject to subsections (2) and (3), the right to claim compensation
under section 17 from the Fund or an agent in respect of loss or
damage arising from the driving of a motor vehicle in the case
where
the identity of either the driver or the owner thereof has been
established, shall become prescribed upon the expiry of a
period of
three years from the date upon which the cause of action arose.
(2)
…
(3)
Notwithstanding subsection (1), no claim which has been lodged in
terms of section 17(4)(a) or 24 shall prescribe before the
expiry of
a period of five years from the date on which the cause of action
arose.’
[5]
[8]
Section 4 of the Interpretation Act provides:
‘
When
any particular number of
days
is prescribed for the doing of any act, or for any other purpose, the
same shall be reckoned exclusively of the first and inclusively
of
the last day, unless the last day happens to fall on a Sunday or on
any public holiday, in which case the time shall be reckoned
exclusively of the first day and exclusively also of every such
Sunday or public holiday.’
(My
emphasis)
[9]
Regulation 1 under the RAF Act provides that ‘a day’
means any day other than a Saturday, Sunday or public holiday.
This
is the regulation which according to counsel for the respondent, this
court could invoke to interpret s 23(3) of the RAF Amendment
Act. I
disagree with this submission. It is trite that regulations are
subordinate to Acts of Parliament. As a general rule, regulations
cannot be used to interpret any piece of legislation where there is
ambiguity. In any event, the regulations do not purport to
regulate
how ‘day’ must be interpreted in any setting other than
the regulations themselves. We are not concerned in
this case with
any act performed in terms of the regulations, but with the
interpretation of s 23(3) of the RAF Act, a section
which, does not
even use the word day.
[10]
In this court, counsel for the appellant contended that the
respondent’s claim was based on an accident that occurred
on 17
June 2009. She had to serve the summons prior to midnight on 16 June
2014 to interrupt prescription. The high court was wrong,
so the
argument went, when it relied on s 4 of the Interpretation Act
because that section only applies to periods expressed in
days
whereas s 23(3) expresses a period in years. Flowing from that,
counsel contended further that because s 23(3) of the RAF
Act
stipulates that ‘no claim which has been lodged in terms of s
17(4)(a) or s 24 shall prescribe before the expiry of a
period of
five years from the date on which the cause of action arose;’
this meant that the claim prescribed on the last
day of the period of
five years from the date on which the cause of action arose. For that
reason, he argued that the respondent
had to do everything that had
to be done, such as issuing and serving the summons, on or before the
last day of the five years
ie 16 June 2014; if necessary by ensuring
that the summons was served by not later than 13 June 2014. He
contended, that the clear
and unambiguous language of the legislature
could not be departed from unless the plain meaning would result in
an absurdity not
intended by the legislature.
[6]
He
submitted further, that the mere issuing of a summons has no effect
on the prescription period as prescription can only be interrupted
by
service of the summons. He submitted further that the respondent
could have effected service of the summons on Monday regardless
of
the fact that Monday was a public holiday. This is so because service
in the high courts in South Africa is provided for in
terms of rule 4
of the Uniform Rules of Court. The rule provides that service can be
effected in different ways, including affixing
to the principal door
of the place of the business of the appellant. The appellant’s
offices need not have been open on the
public holiday in order for
service to have been effected, provided the respondent had by then
procured the issue of summons, if
she issued same on any other day
including 13 June 2014 to beat the deadline of the five year
prescription period.
[11]
I agree with counsel for the appellant that the high court should not
have invoked s 4 the Interpretation Act to come to the
rescue of the
respondent. Nor should it have used the definition of ‘a day’
as defined in regulation 1 to come to the
conclusion that even though
s 23(3) of the RAF Act specifically refers to years, to avoid any
injustice to the respondent, this
section can be interpreted to
include Sundays and public holidays. The high court also erred in
relying on the analogy which this
court drew between s 23(3) of
the RAF Act and s 40(2) of the Insolvency Act in
Nedcor
for reasons not relevant for purposes of this matter.
[12]
I however do not agree with the approach and construction of s 23(3)
of the RAF Act which is propounded by counsel for the
appellant. In
considering the proper interpretation of s 23(3) of the RAF Act, this
case requires this court by means of statutory
interpretation to
strike a balance between an infringement of the guaranteed right of
access to courts
[7]
and
the objective of statutory time limits whose function is ‘bringing
certainty and stability to social and legal affairs
and maintaining
the quality of adjudication’.
[8]
A
good place to start is the Constitution. Section 34 enshrines the
right of access to courts and states that ‘everyone has
the
right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or,
where
appropriate, another independent and impartial tribunal or forum.’
Section
39(1)(b) of the Constitution provides that when interpreting the Bill
of Rights, a court must consider international law.
Section s
39(1)(c) provides that a court may consider foreign law when engaged
in the interpretation of the Bill of Rights.
[13]
On the facts of this matter, the crucial date is the date of the
service of the summons on the appellant (17 June 2014). Viewed
in
isolation, there is a plausible basis in the argument of counsel for
the appellant that the clear and unambiguous language of
s 3(3)
dictates that the last day of the five year period fell on 16 June
2014. This approach may well be consistent with the language
of the
section and the concern to ensure certainty
[9]
but
such a strict and literalist approach may defeat the very protection
afforded by s 34 of the Constitution to the respondent.
The RAF Act
is social legislation, the primary concern of which is to give the
greatest possible protection to persons who have
suffered loss
through negligence or unlawful act(s) on the part of a driver or
owner of a motor vehicle. In
Mtokonya
v Minister of Police
[10]
the
Constitutional Court observed that ‘the process of interpreting
statutes was described in detail in
Makate.
[11]
It
entails giving a statutory provision a meaning that does not only
avoid limiting rights guaranteed by the Bill of Rights but
also
prefers a meaning that promotes those rights.’ In this context,
we are bound to give a more purposive interpretation
than that
propounded by the appellant.
[14]
However, a search for South African precedents or even similar
authorities on this crisp issue yielded no results. Sections
39(1)(b)
and (c) of the Constitution enjoin this court to consider foreign and
international law. Whereas s 39(2) provides for
the development of
common law or customary law to promote the spirit, purport and object
of the Bill of Rights. Although the English
law and practices are
different from ours, we can still draw some lessons from English
authorities by interpreting the law to afford
the respondent a
benefit of striking the balance between the various legislations and
practices. This exercise should not be viewed
as extending the period
prescribed by the legislature but rather as determining the period
intended by the legislature so as to
avoid an injustice which the
legislature could not have contemplated.
[15]
In such exercise, two judgments of the English courts bear reference:
Pritam
Kaur v S Russel & Sons
[12]
and
the recent case of
Nottingham
City Council and Calverton Parish Council
[13]
in
which the court surveyed the cases since
Pritam
Kaur
.
Among the intervening cases is the decision of the House of Lords in
Mucelli
v Government of Albania
[2009] UKHL 2
;
[2009] 1 WLR. 276
where Lord Neuberger in paras 83-84
specifically endorsed
Pritam
Kaur
.
[16]
Pritam
Kaur
[14]
concerned
a statutory time limit relating to a claim under the Fatal Accidents
Act 1846. In this case the plaintiff sought damages
following the
death of her husband when working for the defendant. The limitation
period expired on Saturday 5
th
September 1970. The writ was issued on the following Monday. The
question was whether the law maker intended, in such a case, that
the
period would only expire on the next day on which the court offices
were open. Lord Denning found that the arguments of both
sides were
evenly balanced that it could come down either way. He concluded:
‘…
I
am prepared to hold that, when a time is prescribed by statute for
doing any, and that act can only be done if the court office
is open
on the day when the expires, then, if it turns out in any particular
case that the day is a Sunday or any other dies non,
the time
extended until the next day on which the court office is open.’
[15]
By
so doing, he opined, ‘we make the law consistent in itself; and
avoid confusion to practitioners.’
[16]
[17]
In
Nottingham,
the City Council brought an application to strike out a claim
instituted by Calverton Parish Council in terms of s 113 of the
Planning and Compulsory Purchase Act 2004 for an order quashing a
development plan document which contains the Core Strategy adopted
by
the City Council. In terms of the section, the application needed to
be made within six weeks from the date of the adoption
of the plan.
The central issue was whether, when the last day for making an
application falls on a date when the relevant office
is closed so
that the application cannot be made on that day, s 113(4) is to be
interpreted so that the period of six weeks for
making an application
ends on the next working day when an application in this case would
end on Monday 20 October 2014 and the
claim would be barred by s
113(4). Endorsing the judgment of
Pritam
Kaur
,
the court held that, on a proper interpretation of s 113(4)
,
where the six week period for bringing a claim would end on a day
when the court is closed, so that an application to quash a
development plan document cannot be made on that day, the six week
period will end on the next working day. The statutory provision
is
to be interpreted as permitting the proceedings to be brought on the
next day when the court office is open…’
[18]
Based on his survey of the cases, Lewis J expressed his conclusion
thus (para 33):
‘
In
my judgment, the approach set out in
Kaur
and approved and followed in other cases, sets out a general approach
to the interpretation of statutory provisions prescribing
periods
within which proceedings must be brought. I recognise that the
precise provisions of a particular statute may be such that
a
different approach is called for in relation to that particular
statute. In general terms however, where a statutory provision
provides that proceedings must be brought no later than the end of a
specified period, and the bringing of proceedings requires
that the
court office be functioning, and the last day of the prescribed
period falls on a day when the court office is closed,
then the
statutory provision is to be interpreted as permitting the
proceedings to be brought on the next day when the court office
is
open.’
[19]
The principle set out in these two cases provides the answer which
ties in with the protection afforded to the respondent in
s 34 and in
general, the interpretation provided in ss 39(1)(b)(c) and (2) of the
Constitution. Applying this approach to the facts
of this matter, the
respondent could not have issued the summons on 16 June 2014 as it
was a public holiday. It was therefore a
question of an impossibility
to perform. The impossibility was not of her own doing nor created by
her but by law; the court was
closed on the public holiday. To
interpret the law with the result that the respondent fails to enjoy
the full benefit of the five
year period – as she is entitled
to – would result in an injustice and prejudice to her.
[20]
To sum up, I hold that, on a proper interpretation of s 23(3) of the
RAF Act where the five year period for bringing a claim
ends on a day
when the court is closed, so that summons cannot be issued and served
on that day, the five year period should end
on the next working day.
To hold otherwise would deprive the respondent of her right to claim
which is an absurdity which the legislature
could not have
contemplated.
[17]
In
this case, the consequences would be too harsh to the respondent as
opposed to the appellant. The approach and exercise embarked
upon in
this case, must be on a case by case basis.
[21]
Unlike the English authorities, on which jurisprudence counsel for
the appellant relied, in South Africa, nothing stops one
from issuing
and serving summons on the same day. Thus, had the court been open on
Sunday (weekend) or Monday (the public holiday),
it would have been
possible for the respondent to have issued and served the summons on
that very day without the risk of being
out of time. In conclusion,
the high court was correct to dismiss the special plea of
prescription.
[22]
With regards to costs, it is trite that a party that is successful is
entitled to its costs. The respondent is the successful
party as the
appeal is dismissed. It follows as a matter of principle that costs
should follow the result.
[18]
In so far as the entitlement of the
amicus
curiae
to costs, there is no basis for such an order. First, the facts of
the matter which the
amicus
curiae
relied upon (
Munene
Christina Ntsandeni vs Road Accident Fund
[19]
)
to show its interest in this matter, are distinguishable from the
facts of this matter. The interpretation this court was bound
to
adopt in respect of the social legislation under discussion in this
matter, the RAF Act, had to be based on the Constitution
(ss 34 and
39). The
amicus
curiae
did not raise any novel point. The English cases which this court has
found helpful were raised by the court itself, not by the
parties or
by the
amicus
curiae
.
Therefore it is not entitled to any costs order in its favour.
[23]
It is for the reasons set out above that I am of the view that, the
order of the high court should be confirmed albeit for
different
reasons. In the result, I grant the following order.
Order
The
appeal is dismissed with costs.
B
C Mocumie
Judge
of Appeal
APPEARANCES:
For
Appellant:
HC Keyter
Instructed
by:
Mahararaj
& Associates, Johannesburg
Matsepe
Inc, Bloemfontein
Amicus
Curiae:
SO Ravele
Instructed
by:
FN
Ravele, Louis Trichardt
Phatsoane
Henney Attorneys, Bloemfontein
For
Respondent:
T Tshitereke with E Mmila
Instructed
by:
Nemavhulani
Attorneys, Johannesburg
Webbers,
Bloemfontein
[1]
Nedcor
Bank Ltd v The Master of the High Court (Pretoria) & others
[2001] ZASCA 106; [2002] 2 All SA 281 (A).
[2]
Road Accident Fund v Abrahams
(276/2017)
[2018] ZASCA 49.
[3]
According
to Joubert ed
The
Law of South Africa
vol 27 paras 225, 227 and 229 there are generally three
methods which can be employed to determine a period expressed
in a
number of days:
i)
the statutory method enacted by s 4 of the Interpretation Act;
ii)
the civilian method; and
iii)
the clear days method.
[3]
[4]
Regulation 1 of the regulations
promulgated in terms of the RAF Act : R770 published in Government
Gazette 31249 of 21 July 2008.
[5]
Subsection
(3) substituted by section 10 of Act No. 19 of 2005 with effect from
1 August 2008.
[6]
See
Kleynhans
v Yorkshire Insurance Co Ltd
1957 (3) SA 544
(
A
)
at 549F.
[7]
Section 34 of the Constitution.
[8]
Road Accident Fund and
another v Mdeyide
[2010]
ZACC 18
;
2011 (1) BCLR 1
(CC);
2011 (2) SA 26
(CC) para 8.
[9]
Mdeyide
above
para 8.
[10]
Mtokonya v
Minister of Police
[2017]
ZACC 33
;
2017 (11) BCLR 1443
(CC) para 111.
[11]
Makate v Vodacom (Pty) Ltd
[2016] ZACC
13
;
2016 (6) BCLR 709
(CC); 2016(4) SA 121 (CC) paras 87-93.
[12]
Pritam Kaur v S Russel &
Sons
Ltd [1973] 1 QB
336; [1973] 2 WLR 147; [1972] 1 ALL ER 306.
[13]
Nottingham City Council v
Calverton Parish Council
[2015]
EWHC 503
(2 March 2015); [2015] WLR (D) 99 [2015] PTSR 1130.
[14]
Pritam Kaur
above.
[15]
Reference is made by the court
in
Pritam Kaur
to
Hughes v Griffiths
(1862) 13 CBNS at 333 and some earlier more equivocal decisions.
[16]
Pritam Kaur
above.
[17]
See
Stopforth
v The Minister of Justice & others; Veenendal v The Minister of
Justice & others
1999
(2) SACR 529
(SCA) at 536 D-H with reference to
Venter
v R
1907
TS 910
at 914-5.
[18]
Affordable Medicines Trust &
others v Minister of Health & others
[2005] ZACC 3
;
2006
(3) SA 247
(CC);
2005 (6) BCLR 529
(CC) para 138;
Biowatch
Trust v Registrar; Genetic Resources & another
2009 (6) SA 232
(CC) paras 21-23.
[19]
Munene
Christina Ntsandeni v Road Accident Fund
Case
No 19158/2015; GJ 21738/2014 (16 March 2015).