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IN THE SUPREME COURT OF APPEAL
IN SOUTH AFRICA
REPORTABLE
CASE NO: 151/2000
In the matter between:
ROAD ACCIDENT FUND
Appellant
and
ALFRED SAMELA
Respondent
_____________________________________________________________
CORAM: VIVIER
ADCJ, MARAIS, OLIVIER JJA, CLOETE
and BRAND
AJJA
_____________________________________________________________
Date
of hearing: 4 September 2001
Delivered: 28 September
2001
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
BRAND AJA
[1] I have read the judgment of Cloete AJA. I find
myself unable to agree with his conclusion that the respondent was not a
passenger
"for reward" within the meaning of article 46 (a)(i) of the Schedule
to Act 93 of 1989 (the Schedule"). For the following reasons
I believe that
the respondent did in fact qualify as a passenger for reward.
[2] As
appears from the agreed facts set out in the judgment of Cloete AJA respondent
was a fare-paying passenger and the owner of the
vehicle was the holder of a
permit to engage in road transportation. As a fact respondent therefore did
pay a reward for his conveyance.
It is contended, however, that this reward is
to be disregarded for purposes of Article 46 (a)(i) of the Schedule because "it
rendered
the conveyance illegal in terms of the law relating to the control of
road transportation services" as contemplated by the definition
of "reward" in
article 1 of the Schedule. The basis for this contention is that the
conveyance of the respondent was in contravention
of s 31(1)(b) of the Road
Transportation Act 74 of 1977 ("the Act").
[3] On the agreed facts
the respondent and his fellow passengers were indeed conveyed in contravention
of s 31(1)(b) of the Act in that
the owner of the minibus conducted road
transportation outside the area prescribed in his permit. Putting aside the
potential applicability
of paragraph (b) of the definition of "road
transportration" in the Act and confining my consideration to paragraph (a), it
is so
that, but for the reward paid by the passengers their conveyance would not
have qualified as "road transportation" as defined in
paragraph (a) of the
definition in the Act and could therefore not have constituted a contravention
of either s 31(1)(a) or s 31(1)(b).
But it is equally clear that payment of a
reward alone without an intended or actual transgression of the terms of the
permit would
not have “rendered the conveyance
illegal”.
[4] What this shows is that while the payment of a
reward is critical to the existence of "road transportation" as defined in
paragraph
(a) of the definition in the Act and is therefore a necessary
condition which must be satisfied before there can be a contravention
of either
s 31(1)(a) or s 31(1)(b), in the case of s 31(1)(a) it is also a sufficient
condition to render the conveyance illegal,
whereas in the case of s 31(1)(b) it
is not. Under s 31(1)(b) something more is required to render the conveyance
illegal. That
something is the happening of the particular mischief which
constitutes the true gravamen of the offence created by the legislature,
namely,
transgression of the terms of the permit. That being so, it seems to me to be
inaccurate to say that the payment of the
reward rendered the conveyance illegal
when it seems obvious that its causative role in bringing about that result in
the case of
a permit holder was neutral and that the real and effective cause
was the transgression of the terms of the permit. I say "neutral"
because the
mere payment of the reward no more rendered the conveyance illegal than the mere
boarding of the vehicle by the passenger
did. I say "real and effective cause"
because transgression of the terms of the permit is so plainly the particular
and specific
conduct which the legislature has criminalised by making it an
offence and thereby rendering such a conveyance illegal. In short, in a
case falling under s 31(1)(a) the payment of a reward is manifestly the causa
causans of the rendering illegal of the conveyance. In a case such as this
which falls under s 31(1)(b), it is at best a causa sine qua non but not
the causa causans of the rendering illegal of the conveyance. To that
distinction I shall return.
[5] It seems worth mentioning that the Act
creates a number of offences which permit holders may commit some of which might
be said to
render the conveyance of the passengers who happen to be conveyed
illegal and some of which might not. Conveying passengers in
an overloaded
vehicle may be an example of the former; charging a fare in excess of a
prescribed tariff may be an example of the
latter. But in neither case will it
be the payment of a reward per se which renders the conveyance
illegal. What is noteworthy is that the legislature has not in the
Schedule said that the conveyance of a passenger which is rendered
illegal by
any provision of the Act shall not entitle that passenger to the
compensation provided for in article 46(a). Instead it has deliberately
enacted a far narrower exclusionary provision; it is only where the payment of
a reward (and not some other factor) renders the
conveyance illegal that a
passenger is unable to rely upon the payment of a reward as the basis for a
claim in terms of article
46(a). However, as Cloete AJA has said, non
constat that even in such a case such a passenger may not base the claim on
some other provision of article 46(a).
[6] Since the owner of the
minibus was the holder of a permit he was entitled to convey passengers for
reward within the area prescribed
by his permit. But this very same activity
(conveyance of passengers for reward), became unlawful under s 31(1)(b) when it
was conducted
outside the area of his permit. What was it then that "rendered"
his conveyance of these passengers unlawful? Giving the word
“render” its ordinary meaning, I think that the answer has to be
non-compliance with the permit and not the payment of
a reward. This situation
is to be contrasted with that in which the owner of a vehicle conveys passengers
without any permit at
all. He may do so legally as long as there is no reward
involved. It is when he accepts a reward for the conveyance that the
conveyance becomes illegal under s 31(1)(a) of the Act. In that event it can,
in my view, rightly be said that it is the reward
which renders the conveyance
illegal within the meaning of the definition of "reward".
[7] As I
have indicated, I believe the difference between the situations contemplated by
s 31(1)(a) and s 31(1)(b), respectively, is
this: in the s 31(1)(a) situation
the reward can rightly be described as the "effective cause" or the "operative
cause" or the causa causans of the illegality whereas in the s 31(1)(b)
situation it is merely a condition precedent together with other equally
relevant conditions
precedent for the illegality of the conveyance. I am
mindful of the reasoning by Cloete AJA in para 20 of his judgment that this
distinction between s 31(1)(a) and s 31(1)(b) amounts to a distinction without a
difference in that in both subsections, acceptance
of a reward is only one of
the elements which comprise the offences thereby created. In s 31(1)(a), so
his reasoning goes, the
other element is the absence of a permit while in s
31(1)(b) it is the contravention inter alia, of the provisions of the
permit. I do, however, find myself in respectful disagreement with this
reasoning. The offence under
s 31(1)(a) is not "conveyance for reward without
a permit". It is "conveyance for reward". Absence of a permit is thus not an
element of the offence. Possession of a permit is a defence. This appears
from the way the offence is formulated in the section,
namely, road
transportation except under the authority of a permit. (See S v
Everson 1980 (2) SA 913 (NC) at 917 H – 918 C.) According to the
formulation of the offence under s 31(1)(b), on the other hand,
it is
constituted by conveyance for reward otherwise than in accordance with
the provisions of the permit or the provisions of s 24. In the latter case the
elements following the word
"otherwise" are constituent elements of the offence.
They are not exceptions within the meaning of s 90 of the Criminal Procedure
Act
51 of 1977.
[8] The conclusion, with reference to offences under s
31(1)(b), that it is the reward paid by the passenger which renders the permit
holder's conduct unlawful and the conveyance illegal involves ascribing a
strained meaning to the term "render" and gives rise to
untenable results.
This can be illustrated by the following example. The permit holder commits an
offence under s 31(1)(b) if
he contravenes the provisions of s 24. In terms of
s 24(1)(a) the permit must at all times be carried on the vehicle to which it
pertains. To conclude that the conveyance of the passengers while his permit
is at his home and not in his vehicle is "rendered
illegal" by the reward
paid by his passengers and that his passengers will thus not be covered
under article 46(a)(i) is, in my view, untenable. I have considered
the answer
to this problem suggested by Cloete AJA in para 21 of his judgment. I do not
think, with respect, that it is a valid
answer. Non-compliance with s 24(1)(a)
of the Act constitutes an offence under s 31(1)(b). If the contravention of s
31(1)(b)
excludes the passenger from the protection of article 46(a)(i), as
Cloete AJA holds, it follows that the passenger will not be covered
by article
46(a)(i) if the permit is not on the vehicle.
[9] There are two
further considerations why I prefer the interpretation of the definition of
"reward" that I propose in the present
context. First, if the legislature had
intended to go further and to exclude any reward paid "in connection with an
illegal conveyance" (cf Nhlangwini and Another v National Employers
General Insurance Co Ltd and Another 1989 (1) SA 96 (W) 98 G) irrespective
of whether it was indeed the payment of the reward which rendered the conveyance
illegal, it
would have said so. Secondly, the historical background to the
definition of "reward" appears to support the construction that
the exclusion is
aimed at a reward paid to the owner without a permit, i e the offence under s
31(1)(a). A similarly worded definition
of "reward" was introduced for the
first time by s 1(e) of the Motor Vehicle Amendment Act 60 of 1964 as an
amendment to Act 29 of
1942. It appears that it was the decision of this Court
in Ndhlovu v Mathega 1960 (2) SA 618 (A) regarding the meaning of
"reward" in Act 29 of 1942 that gave rise to the amendment. It is not
insignificant
in my view that the Ndhlovu case itself, as well as the
conflicting decisions considered therein, related to rewards paid to persons who
were not permit holders.
(See also Arthur Chaskalson "Conveyance for Reward
Contrary to the Provisions of the Motor Carrier Transportation Act" (1960)
77 SALJ 284 and Santam Insurance v Tshiva 1979 (3) SA 73 (A) 80
E-H).
[10] Finally, even if I am wrong in thinking that the
construction of the definition of "reward" that I favour is the only possible
construction,
the definition is at least reasonably capable of being so
construed. Since this is the construction that gives the greatest protection
to third parties it is to be accepted in preference to the interpretation
proposed by Cloete AJA which would deny such protection
(see e g AA Mutual
Association Ltd v Biddulph and Another 1976 (1) SA 725 (A) 738 H, Van
Blerk v African Guarantee & Indemnity Co Ltd 1964 (1) SA 336 (A) 341
C-H). In my view, the Nhlangwini's case, supra, was wrongly decided and
the interpretation given to the definition of reward by Thirion J in Mutual
& Federal Insurance Co Ltd v Gounder 1995 (1) SA 486 (D) 491 D –
492 A, was correct.
[11] In the result I would uphold the Court a
quo's finding that in the circumstances of the present case respondent was a
passenger for reward as contemplated by article 46 (a)(i)
of the Schedule. For
the rest, I agree with the judgment of Cloete AJA.
FDJ BRAND
ACTING JUDGE OF APPEAL
AGREED:
Vivier DCJ
Marais JA
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