---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)      REPORTABLE

(2)      OF INTEREST TO OTHER JUDGES

(3)      REVISED.

CASE NO: 33711/2016

7/9/2018

 

In the matter between:

 

JONES, AA                                                                                                                  Plaintiff

 

and

 

ROAD ACCIDENT FUND                                                                                        Defendant

 

Heard: 22 August 2018
Delivered: 7 September 2018

 
JUDGMENT

 

Coram : VAN DER SCHYFF, AJ

Introduction

[1]        This matter came before me as a stated case.

[2]        At the onset of the proceedings the parties requested that a stated case be decided first and separate from the other issues, and that the other issues stand over for possible adjudication at a later stage.

[3]        In light of the fact that Rule 33(4) of the Uniform Rules of Court is aimed at facilitating the convenient and expeditious disposal of litigation (Denel (Edms) Bpk v Vot:5ter2004 (4) SA 481 (SCA) Para 3), I considered whether a separation would in fact be convenient and serve the expeditious disposal of the litigation. In light of the facts of this case as placed before me for purposes of adjudicating the stated case, I was of the view that this is indeed the case and I accordingly ordered the separation of the stated case from the other issues.

[4]        The court granted the defendant's proposed amendment of its plea since the parties were in agreement and no party would suffer prejudice.

[5]        The plaintiff and defendant agreed that the dispute be adjudicated on the following agreed facts, which facts are only agreed for purposes of deciding on the issues set out below, but still either have to be proved by the plaintiff in the ordinary course or admitted by the defendant if the stated case is decided in favour of the plaintiff:

[5.1]    The action, instituted in terms of the Road Accident Fund Act, 56 of 1996 (hereafter "the Act''), arises from bodily injuries sustained by the plaintiff (whilst being the driver of his vehicle) in a motor vehicle accident which occurred on 17 February 2012 on the road between Orkney and Stilfontein.

[5.2]    The accident occurred when a rock, forming part of gold ore transported fell from or became dislodged from a heavy motor vehicle/truck trailer combination (''the insured vehicle''), penetrated the windscreen of the plaintiff's vehicle and struck the plaintiff on his head - this allegation is not admitted by the defendant, but can be accepted solely for purposes of adjudicating the prescription issue that falls to be decided.

[5.3]    The accident was allegedly caused by the negligence of the driver of the insured vehicle which conveyed the ore, such negligence being set out in paragraph 5 of the particulars of claim - this allegation is not admitted by the defendant, but can be accepted solely for purposes of adjudicating the prescription issue which falls to be decided; and

[5.4]    Whilst the driver of the insured vehicle could not be identified, a series of vehicles and their owners were subsequently identified, one of which probably conveyed the ore at the time and of which the details are set out in paragraph 3.2 of the particulars of claim (one being in the alternative to the other).

[5.5]    The plaintiff's claim was lodged more than two years after the date on which the cause of action arose, i.e. too late for a claim in terms of section 17(1)(b) of the Act (read with regulation 2(1)), but in time for a claim in terms of section 17(1)(a) thereof.

 

[6]        The parties agreed that the following issues serve to be adjudicated:

[6.1]     Is the plaintiff's claim a claim as contemplated in section 17(1)(a) of the Act or is it a claim to be adjudicated in terms of and subject to section 17(1)(b) read with regulation 2(1)(b) of the regulations promulgated in terms of the Act?

[6.2]     Has the plaintiff's claim accordingly become prescribed for want of lodging it within the prescribed two years contemplated in regulation 2(1)(b) or has it been timeously lodged?

 

[7]        The plaintiff's case, as set out in the stated case is that:

[7.1]  The fact that a group of vehicles and their owners were identified of which one was the vehicle from which the ore fell and injured the plaintiff, is sufficient identification to place the claim outside the envisaged scope of section 17(1)(b) of the Act and regulation 2(1)(b) of the regulations promulgated in terms of the Act;

[7.2]  this means that the insured vehicle was not a vehicle where the identity of the owner has not been established (as contemplated in the regulation) albeit that the identity of the driver has not been established;

[7.3]  the claim is therefore a claim which falls within the scope of section 17(1)(a) of the Act, being a claim where the identity of the owner of the vehicle has been established and that it was accordingly timeously lodged.

 

[8]        Plaintiff's counsel argued, amongst other, that:

[8.1]    The owner of a vehicle can easily be identified if the vehicle's registration number is available due to the motor vehicle license registration system used in South Africa;

[8.2]    The claim was factually lodged and formulated in terms of section 17(1)(a) because 23 vehicles were " identified" - one of which probably caused the accident;

[8.3]     The owners of these vehicles were identified;

[8.4]    The only unidentified aspect of the claim is that the driver of the vehicle at the time has not been identified;

[8.5]    The Fund steps into the shoes of the common law wrongdoer and in common law the plaintiff would have been entitled to sue two common law wrongdoers in the alternative if he was unsure which one exactly caused his loss for which he is claiming damages. As a consequence in a scenario where a plaintiff is presented with two possible common law wrongdoers, it will not matter which of the two vehicles actually caused the loss or damage as long as the court is persuaded that one of the two vehicles probably caused the loss. The argument is that this logic must be carried over regardless of the number of vehicles which probably caused .the loss. According to plaintiff the only requirement that the plaintiff will have to prove is that one of the vehicles of those owners for whom the RAF assumes statutory liability, was PROBABLY the vehicle which ran him over (or, on the facts of this case, which dislodged or dropped the ore).

 

[9]        The defendant's case as set out in the stated case is that:

[9.1]  The insured vehicle was a vehicle contemplated in section 17(1)(b) of the Act and regulation 2 viz. one of which neither the identity of the driver nor the owner has been established, and

[9.2]  the claim has become prescribed because it was lodged more than two years after the cause of action arose.

 

[10]     It was, amongst other, argued on behalf of the defendant that the plaintiff does not know what vehicle caused the damage and therefore the claim falls within the ambit of s 17(1)(b). The legislature's intention should be found in the ordinary meaning of the words of the applicable section.

[11]     The crisp question before the court is whether, where an accident is caused in circumstances where it is not possible to identify a specific vehicle as "the insured vehicle", but it is possible to identify a series of vehicles (and their owners) one of which probably caused or contributed to the accident at the time and place where the incident occurred, the claim falls in the category of what is often referred to as an "identified" claim as oppose to an "unidentified" - or hit-and-run claim.

[12]      It was argued by counsel acting on behalf of the plaintiff that this stated case does not involve the interpretation of any provision of the Act, and that it must only be discerned whether the claim was formulated as a so-called " identified" claim. However, I am of the view that the substance of the plaintiff's particulars of claim and not the form in which it is presented should be considered. In order to determine whether it will suffice to identify 23 probable vehicles whose owners have been identified to place the claim within the ambit of s 17(1)(a) the meaning of s 17(1)(a) must be determined by interpreting the clause.

[13]      In order to decide this, it is necessary to revisit and analyse the distinction between ss 17(1)(a) and 17(1)(b) of the Act within the context of s 17, and the Act as a whole.

[14]      Section 17 is a pivotal provision of the Act since it determines the Fund's liability.

[15]      It is often said that ss 17(1) (a) and (b) distinguish between cases 'where the owner or driver is identified and those where neither is identified'. The stated case that stands to be adjudicated indicates that it is necessary to deal more carefully with the content of s 17(1)(a) and (b).

[16]      It is trite that the only consequence attached to the distinction created ins 17(1)(a) and (b) is the period within which the claim must be lodged with the Fund.

[17]      The relevant portion of s 17(1) reads:

"Liability of Fund and agents: - (1) The Fund or 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 driver nor the owner thereof has been established

be obliged to ..." (my emphasis).

 

[18]      It is trite that claims against the Fund are founded in the law of delict. The Fund's liability is expressly limited to those instances where either the owner or the driver of a motor vehicle would have been liable for a plaintiff's damages but for the provision of section 21 of the Act. This principle is applicable whether the claim falls under s 17(1)(a) or s17(1)(b). The only difference is that under the common law the plaintiff would have had a claim but it would have been impossible to enforce the claim until the identity of the wrongdoer became known. Under the common law and if the Road Accident Fund was not statutorily created and no road accident compensation system was statutorily provided for, section 12(3) of the Prescription Act 68 of 1969 would have prevented the prescription period from commencing until the creditor had knowledge of the identity of the debtor, provided "that a creditor shall have deemed to have such knowledge if he could have acquired it by exercising reasonable care". In many instances the debtor remained anonymous and a plaintiff had no one to turn to, to claim his damages from. In order to provide for the compensation of road accident victims in such situations, the legislature included s 17(1)(b) of the Act.

[19]      Section 17(1) sets out the facta probanda for a claim against the Fund, irrespective whether the claim is subject to the Act (s 17(1)(a)) or subject to any regulation made under s 26 (s 17(1)(b), in this case regulation 2.

[20]      A closer reading of both sub-sections 17(1)(a) and (b) shows an undeniable link between the element of causation and the distinction created by this section that lead to the development of the terms" identified vehicle" and "unidentified vehicle".

[21]     Two requirements are stated for a claim to fall in the category provided for by s17(1)(a), and if these requirements are not met the claim will fall under the provisions of s 17(1)(b). For s17(1)(a) to apply, the claim for compensation-

 

(i)      must    arise from the driving of a motor vehicle (broad causation element); and

(ii)    the identity of the owner or the driver thereof must have been established.

 

[22]      The important words here are "thereof" and "established".

[23]      If the words used by the legislature are taken at face value and the ordinary meaning ascribed thereto, the logical conclusion is that the identity of the owner or driver of the motor vehicle whose driving gave rise to the accident, must have been established for the claim to fall within the category provided for by s 17(1)(a).

[24]      The ordinary meaning of the term "established" has been stated in the well-known Black's Law Dictionary to mean "to settle firmly" or "to fix unalterably". In the Merriam-Webster dictionary the meaning "to put beyond doubt" is ascribed to the term. In the context of a civil trial this would equate to being accepted prima facie on a balance of probabilities.

[25]      Cognisance must however be taken, that once the literal or ordinary meaning o fa term is determined, the word must be interpreted in its context, in this case as part of a provision and within the broader context of being part of a statute with a very specific purpose - (Jaga v Donges and Another, Bhana v Donges NO and Another 1950 (4) SA 653 {A) 663H-664A; Bato Star Fishing (Pty} Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) para 90).

[26]      The Act under consideration is the latest in a long series of enactments dating back to 1942, that is, and were, designed to compensate persons who are injured, or the dependants of persons who are killed in consequence of the negligent driving of motor vehicles. It is frequently emphasised that the Act must be given a liberal interpretation because it is intended to" ... give the greatest possible protection, by way of insurance, to persons who have suffered a loss through a negligent or unlawful act on the part of the driver or owner of a motor vehicle"- see inter alia Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A) 285E-F; Shabalala v Road Accident Fund(12777/04) [2006] ZAGPHC 84 (29 August 2006).

[27]      However, the legislature provided two distinct procedures to be followed by potential plaintiffs, depending on whether the plaintiff is able to identify the driver or owner of the vehicle from whose driving his damages arose, or whether the identity of neither the driver nor the owner can be established. In light of the very clear distinction created by s 17(1) and (b) and the fact that an alternative procedure is specifically provided for, and prescribed, where the identity of neither the driver nor the owner of the vehicle who caused or contributed to accident can be established, I am of the view that the context does not require a deviation from the literal meaning ascribed to the word "establish".

[28]      In the current case, a series of vehicles and their owners were identified, 23 vehicles to be precise, respectively linked to one of 9 different vehicle owners, one of which probably conveyed the ore at the time (one being in the alternative to the other). This scenario is to be distinguished from a multi vehicle accident where more than one vehicle was undeniably involved in the collision, but the degree of fault of each driver needs to be determined. In the current case the driver and/or owner of only one out of 23 probably caused the plaintiff's damages. The vehicle is not identified, and as a consequence neither can the identity of the driver or owner from whose vehicle the gold carrying ore fell, be established prima facie on a balance of probabilities. On the facts as accepted for purposes of deciding the stated case, the plaintiff is not able to show the causal link between any specific vehicle being driven at a specific time, and the damages that he suffered. It subsequently follows that, on these facts, the claim had to be instituted in accordance with s17(1)(b).

 

ORDER

In light of the circumstances of the case it is ordered that:

[1]     The stated case be decided first and separate from the other issues, and that the other issues stand over for possible adjudication at a later stage;

[2]     The proposed amendment to the defendant's plea is granted;

[3]     On the facts accepted for purposes of the stated case plaintiff's claim is a claim to be adjudicated in terms of and subject to section 17(1)(b) of the Road Accident Fund Act, No 56 of 1996, read with regulation 2(1)(b) of the regulations promulgated in terms of the Act;

[4]     On the facts accepted for purposes of the stated claim the plaintiff's claim accordingly became prescribed for want of lodging it within the prescribed two years contemplated in regulation 2(1)(b) and falls to be dismissed with costs.

 

 

E VAN DER SCHYFF

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

 

 

Heard on:                                       22 August 2018

For the Plaintiff/Applicant:           Adv DE Waal

Instructed by:                                Adams & Adams

For the Defendant/Respondent:    Adv CH Badenhorst

Instructed by:                                Morare Thobejane Attorneys

Date of Judgment:                        7 September 2018

 

---