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Last Updated: 8 June 2005
REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
Case Number : 649 / 02
In the matter between
ROAD
ACCIDENT FUND APPELLANT
and
BENNET LEFU
MAKWETLANE RESPONDENT
Coram : HOWIE P, MARAIS JA,
JONES, SOUTHWOOD and PONNAN AJJA
Date of hearing : 20 MAY
2004
Date of delivery : 17
FEBRUARY 2005
SUMMARY
Motor vehicle accidents
– compensation – claim for in terms of the Road Accident Fund Act 56
of 1996 – validity
of reg 2(1)(c)- Regulation not ultra
vires.
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
PONNAN
AJA
[1] Is regulation 2(1)(c) (‘the regulation’) promulgated
by the Minister of Transport[1]
pursuant to the power vested in him by section 26 of the Road Accident Fund Act
56 of 1996 ('the Act') ultra vires? That question, which was answered in
the affirmative by the court
below,[2] is the crisp issue
which now confronts this court on appeal.
[2] The regulation provides:
‘In the case of any claim for compensation referred to in section 17(1)(b)
of the Act, the Fund,
shall not be liable to compensate any third party unless
... the third party submitted, if reasonably possible, within 14 days after
being in a position to do so an affidavit to the police in which particulars of
the occurrence concerned were fully set out’.
In Road Accident Fund v
Thugwana 2004 (3) SA 169 (SCA) this court recently had occasion to consider
whether the regulation was ultra vires, as also an ancillary
issue, namely, whether the regulation is peremptory. On each issue it reached a
conclusion contrary to that
reached by the court a quo in this matter. In so
doing it held that this matter had been wrongly decided by the court a quo and
specifically
overruled it. That without more, one would think necessarily puts
an end to this appeal. For the reasons that follow, in my view,
it does
not.
[3] The respondent ('the plaintiff') sued the appellant ('the RAF')
in the Johannesburg Magistrates’ Court for loss or damage
suffered by him
on 6 May 1999, at Main Road, Freedom Park, Johannesburg, when, according to him,
a motor vehicle collided with him
whilst he was a pedestrian. The cause of the
collision, so alleged the plaintiff, was the negligent driving of the motor
vehicle
in question of which the identity of neither the owner nor the driver
thereof has been established.
[4] The RAF pleaded that the plaintiff had
failed to comply with the regulation. It accordingly denied that it was liable
to compensate
the plaintiff in terms of section 17(1) of the Act and sought the
dismissal of the plaintiff's claim. That and three other points,
all of which
were described as special pleas, were considered in limine by the trial
court. Having successfully negotiated the other three, the plaintiff failed to
establish compliance by him with the
regulation, resulting in the dismissal of
his action.
[5] The court a quo reversed that finding of the trial
court on appeal and substituted in its stead an order dismissing the RAF's
special plea with costs.
In so doing, it held that the regulation was ultra
vires. Leave having been granted by it, the matter now serves before this
court on appeal.
[6] The proper approach to an enquiry such as the
present is to consider inter alia the context of the regulation, the
overall purpose of the statute, the legislative history and to subject the
regulation in question
to constitutional scrutiny.
[7] The Act here under
consideration is the latest in a long series of enactments dating back to
1942.[3] The present Act, like its
predecessors, is designed to compensate persons who are injured, or the
dependants of persons who are killed
in consequence of the negligent driving of
motor vehicles. The Act must be given a liberal interpretation as it, again like
its predecessors,
is intended ' ... to give the greatest possible protection, by
way of insurance, to persons who have suffered loss through a negligent
or
unlawful act on the part of the driver or owner of a motor vehicle' (Aetna
Insurance Company v Minister of Justice 1960 (3) SA 273 (A) at 285
E-F).[4]
[8] There is no
indication either expressly or otherwise in the present Act of an intention or
general object that is any different
to that of its predecessors. The Act
provides for the establishment of a fund, the object whereof, as stated in
section 3, is '....the
payment of compensation in accordance with the Act for
loss or damage wrongfully caused by the driving of motor vehicles...'.
[9] Section 17 (1) provides:
'(1) 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.'
[10] In Bezuidenhout v Road Accident Fund
2003 (6) SA 61 para 6, this court held: 'Section 17 (1) distinguishes
between the liability of the Fund in the case of a claim for
compensation where
the identity of the owner or the driver of the vehicle involved has been
established and the case of a claim for
compensation involving an unidentified
vehicle. Section 17 creates liability in both cases, the only difference being
that in the
case of the unidentified motor vehicle claims the Fund’s
liability is made "subject to any regulation made under Section
26".’
[11] The question is thus whether the promulgation of the
regulation was a valid exercise of the power granted to the Minister to
make
regulations by section 26. Section 26 (1) reads:
'(1) The Minister shall or may make regulations to prescribe any matter which in terms of this Act shall or may be prescribed or which may be necessary or expedient to prescribe in order to achieve or promote the object of this Act.'
[12] Of section 26(1) this Court stated in
Bezuidenhout (para 10):
'It is certainly not clear whether the modifier at the end of s 26(1) modifes the whole section or only the words which immediately precede it. In my view, however, this is of no consequence since it must in any event be implied that s 26(1) cannot empower the making of regulations which widen the purpose and object of the present Act or which are in conflict therewith. See R v Hildick-Smith 1924 TPD 69 at 92 and Caney Statute Law and Subordinate Legislation at 88. Bennion Statutory Interpretation 3rd ed (1997) at 189 points out that underlying the concept of delegated legislation is the basic principle that the Legislature delegates because it cannot directly exert its will in every detail. All it can in practice do is to lay down the outline. This means that the intention of the Legislature, as indicated in the enabling Act, must be the prime guide to the making of delegated legislation and the extent of the power to make it. Bennion continues as follows:
"The true extent of the power governs the legal meaning
of the delegated legislation. The delegate is not intended to travel wider
than
the object of the Legislature. The delegate's function is to serve and promote
that object, while at all times remaining true
to it." '
[13] It is
unnecessary to define with precision the nature of the act performed by the
Minister, for, however defined, and whatever
its true nature, the conduct of the
Minister in promulgating the regulation is subject to constitutional scrutiny.
It is a concept
central to our constitutional order that neither the legislature
nor the executive may exercise any power or perform any function
beyond that
conferred by law (Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374
(CC) para 58).
[14] The exercise of all public power must comply with the
Constitution and the question whether the Minister acted intra or
ultra vires in promulgating the regulation is a constitutional matter.
(See Pharmaceutical Manufacturers Association of SA and Another: In re
ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC).) Thus what would have been ultra vires under the common law by
reason of a functionary exceeding a statutory power is invalid by virtue of the
doctrine of legality under
the Constitution (Pharmaceutical Mnfrs. para
50; see also Minister of Correctional Services and Others v Kwakwa and
Another 2002 (4) SA 455 (SCA) para 35). The doctrine of legality
required of the Minister that he comply with the Constitution as well as act
within the parameters of the
power conferred upon him by the Act.
[15] Of
the regulation which is ‘not a model of clarity’ (Thugwana
para 6), this court stated: ‘Once a claimant is in a position to make
an affidavit, the 14-day period begins to run. But the
claimant may have
difficulties in making the necessary arrangements to depose to an affidavit or
to submit it to the police. If the
affidavit is submitted more that 14 days
after the claimant was in a position to do so, the question would arise whether
it was reasonably
possible for this to have been done within the 14-day period.
If so, the fund will incur no liability. If not, the 14-day period
would be
extended for so long as it was not reasonably possible for the claimant to have
submitted it – but no longer. Any
other interpretation would absolve a
claimant from the obligation to submit an affidavit at all if this was not
reasonably possible
within the 14-day period, or provide no time limit in such a
case for the furnishing of the affidavit; and manifestly neither interpretation
can have been what the legislature intended.’ (See Thugwana para
7.)
[16] The plaintiff was hospitalised for a period of approximately
three weeks immediately following upon the collision. On 20 July
1999 he
reported the collision to the Mondeor police station. Although an officer's
accident report (OAR) form was completed, no
affidavit, in the sense
contemplated by the regulation, was submitted by the plaintiff to the police.
On those facts, it is plain
that the plaintiff was in a position to submit the
affidavit required by the regulation to the police at the latest by the 20 July
1999. No written statement, much less one sworn to before a Commissioner of
Oaths, was made by the plaintiff. It follows that there
has been non-compliance
with the provisions of the regulation by the plaintiff.
[17] Section
26 empowers the Minister to make regulations in order to achieve or promote the
objects of the Act. It does not confer
authority on him to traverse terrain
outside that limited scope and ambit. All regulations promulgated by the
Minister must thus
be reasonably necessary to achieve those objects and goals.
It is indeed so that the possibility of fraud is greater in cases where
the
identity of the driver or owner of the vehicle in question has not been
established, as it would usually be difficult for the
RAF to secure evidence to
dispute a claim (see Mbatha at 718H). Stricter requirements would thus be
justified in unidentified vehicle cases. It follows that regulations designed to
eliminate
fraud and facilitate proof of legitimate claims, falling as it does
within the Minister’s power to regulate, would be permissible.
No other
reason has been suggested for such a requirement and I can think of none. That
legitimate end, may not, however, be achieved
by means that sweep too broadly.
[18] Not all limitations that seek to achieve so laudable a motive as
the elimination of fraud are for that reason alone constitutionally
acceptable.
The limitation in this case must be viewed against the backdrop of ‘the
state of affairs prevailing in South Africa,
a land where poverty and illiteracy
abound and differences of culture and language are pronounced, where such
conditions isolate
the people whom they handicap from the mainstream of the law,
where most persons who have been injured are either unaware of or poorly
informed of their legal rights and what they should do in order to enforce
those, and where access to the professional advice and
assistance that they need
so sorely is often difficult for financial or geographical reasons’ (per
Didcott J in Moholomi v Minister of Defence 1997 (1) SA 124 (CC) para
14).
[19] The Constitution places significant restraints upon the
exercise of public power. It is a requirement of the rule of law that
the
exercise of public power should not be arbitrary. It follows that the exercise
by the Minister of the regulatory power conferred
upon him had to be rationally
related to the purpose for which the power was granted - rationality being the
minimum threshold requirement.
(See Pharmaceutical Mnfrs para 85 and 86.)
Conduct that fails to pass that threshold requirement would fall below the
standards set by our Constitution and
would therefore be unlawful. Whether such
a rational relationship indeed exists is an objective one.
[20] The
14-day period is but one part of a composite scheme. There are at least three
other component parts to the regulation. It
requires of a claimant that he/she:
(i) submit an affidavit; (ii) to the police; (iii) which sets out the
particulars of the occurrence
concerned. For its practical efficacy the
regulation is dependent on co-operative members of the police who are well aware
of the
duty cast upon them by the regulation. Whether a justiciable dispute
comes before a court of law may depend in no small part on the
whim of a
particular member of the police services. Extraneous factors such as the
knowledge and professionalism of the police,
as also the storage capacity and
reliability of records kept at any given police station (see Geldenhuys &
Joubert v Van Wyk, Zendra and
Road Accident Fund;
and Van Wyk, Zendra v Geldenhuys & Joubert and Road Accident Fund SCA
cases 471 & 472/2003 para 20, 21 and 22 delivered on 30 November 2004) are
beyond the control of a claimant and may likewise
be beyond the control of the
Minister of Transport. And yet, the police have an important role to play,
which if not diligently
discharged could result in the loss of a
claimant’s right.
[21] The consequence of non-compliance with the
regulation, a harsh one at that, is arbitrary and indiscriminate. It matters not
that a claimant may in fact have been the victim of a hit and run collision and
that such fact could perhaps be established by means
of some other compelling
evidence. Assuming an otherwise valid claim, the effect of the regulation is to
non-suit a claimant should
there be non-compliance with its provisions. Indeed,
as this court held in Thugwana (para 16) ‘that is likely to be the
situation in the vast majority of cases, as the vast majority of claimants are
unlikely
to be aware of the requirements of the regulation’.
[22] I cannot accept that a regulation that non-suits the vast majority
of claimants could possibly ' ... achieve or promote the object
of this Act'. On
the contrary, to my mind, it runs counter to the purpose and scope of the Act.
In a country where so few are possessed
of the sophistication and means to
enforce their rights, the imposition of the conditions envisaged in the
regulation and the undifferentiated
and arbitrary consequences of its
enforcement may well be regarded as being unreasonable. Such a regulation can
hardly be said to
have been authorised by the Act or countenanced by the
Constitution. Accordingly, for the reasons given, I would hold that Regulation
2(1)(c) is ultra vires.
[23] After the appeal had been argued
before this court, the parties were invited to file supplementary heads of
argument in respect
of certain defined issues. Those heads of argument, which
should have been filed on behalf of the plaintiff by 30 July 2004, were
not. Nor
were they filed by the 27 or 31 August 2004, being the successive extensions of
time granted by the President of this court
for that purpose. Correspondence
from the Registrar of this Court to the plaintiff’s attorney made it plain
that no heads
of argument would be received thereafter and that this court would
proceed to consider and prepare judgment. That notwithstanding,
heads of
argument came to be served on behalf of the plaintiff on the Registrar of this
court at approximately 9pm on 10 September
2004. It was accompanied by an
application for condonation, which was not opposed by the RAF. Although the
reasons advanced for the
tardiness makes far from compelling reading and it
might well have been arguable that the heads of argument could have been served
and filed much earlier had the plaintiff’s representatives manifested
greater diligence and tenacity, the delay which in fact
ensued has not
prejudiced the RAF in any way as to justify a refusal of the application for
condonation. Those late supplementary
heads of argument, did, however, have the
undesirable effect of delaying the finalisation of the judgment of this court.
By the time
those heads of argument came to be lodged, some four months after
the hearing of the appeal, of the five
Judges who had heard the matter, two
were on leave, one had retired and one had returned to duty in the Provincial
Division.
_______________
V M PONNAN
ACTING
JUDGE OF APPEAL
MARAIS JA
[24] I have had the
benefit of reading the judgment of my learned brother Ponnan but am unable to
share in his conclusion that regulation
2(1)(c) is invalid in law.
[25] A
regulation which purports to attenuate substantively an unqualified right of
action conferred by enabling legislation would
be obviously ultra vires.
It was so held by this court in both Padongelukkefonds (voorheen
Multilateral Motorvoertuig-ongelukkefonds) v Prinsloo 1999(3) SA 569 (SCA)
and Bezuidenhout v Road Accident Fund 2003 (6) SA 61 (SCA) in relation to
a regulation requiring physical contact to have occurred between the vehicle
involved in a ‘hit
and run’ case and the claimant before liability
could arise. In constitutional law parlance such a regulation would infringe
the
principle of legality.
[26] A regulation which imposes a reasonable time
limit for the lodging of a claim in such a case is not ultra vires. It
was regarded in Mbatha v Multilateral Motor Vehicle Accidents Fund 1997
(3) SA 713 (SCA) at 718E-F as being consistent with ‘the general rule that
the right to prescribe time limits within which
procedural acts must be done is
inherent in the right to regulate’. See too Geldenhuys and Joubert v
Van Wyk and Road Accident Funds; Van Wyk v Geldenhuys and Joubert and Road
Accident Fund, cases 471 & 472/2003, 30.11.2004 (SCA).
[27] In
regulation 2(1)(c) we have a requirement which, in my view, falls into neither
of these two conceptually clear categories.
What the claimant is required to do
must be done after the occurrence which is alleged to give rise to the
claim and in order for the claim to come into existence. The liability of the
Fund, if any, is plainly derivative; it is made answerable for the delict of an
unidentifiable driver. The delict is constituted
by the negligent driving of a
motor vehicle which results in physical injury or death causing loss. The
commission of the delict
cannot depend upon what steps are, or are not, taken
after the occurrence by the claimant. Unlike the situation in the cases of
Prinsloo and Bezuidenhout, the regulation does not purport to
qualify the substantive circumstances of the occurrence which the enabling
legislation has decreed
shall potentially give rise to liability. I say
‘potentially’ for the reason given in paras [6] and [7] of this
judgment.
[28] Nor does the requirement in issue fall into the category
of things which must be done vis-à-vis the Fund as part of the
process of instituting the claim, for example (as in the case of Mbatha),
lodging the claim in prescribed form within two years from the date on which
the claim arose. Such a requirement is plainly procedural
in character even
although a failure to comply with it may result in inability to pursue the
claim. Here the claim will not have
arisen before the required act is
done.
[29] The requirement in regulation 2(1)(c) is not procedural in the
ordinary sense in which that word is understood in the context
of litigation.
The step to be taken is not one to which either the Fund or the court is to be
privy, and it does not constitute
a step in the actual making of a claim. Yet it
is a step which must be taken by the claimant after the commission of the delict
as
a condition precedent to the Fund having to compensate the claimant. Can it
rightly be said that it amounts to a substantive attenuation
of the liability
which the enabling legislation intended should exist and that it is therefore
ultra vires on that ground? I think not.
[30] First, the premise
from which the question posed proceeds does not exist. In the case of
Geldenhuys and Joubert it was held by this court that the lodging of a
claim within the two-year period prescribed by regulation 2(3) was ‘a
precondition
to the existence of the debt under the Act’ and that if the
claim is not lodged within that period there is no ‘debt’.
(At para
[25]). By parity of reasoning, so it seems to me, the same must apply to the
requirement in regulation 2(1)(c). It was emphasised
in that case that the
current legislation expressly empowers the Minister ‘to subordinate the
Fund’s liability’
in ‘hit and run’ cases ‘to
regulatory conditions’. (At para [30]). It follows that no accrued and
vested
right to be compensated by the Fund was intended to come into being
merely upon the happening of the occurrence. At best the loss
sustained was to
be potentially compensable by the Fund. Whether or not liability to compensate
would arise was intended to depend
upon what further requirements might be set
by regulation under s 26 of the Act.
[31] The regulatory power so
conferred is of course constrained by the need to stay within well-established
boundaries. Apart from
the express injunction in s 26 that any such regulation
must ‘be necessary or expedient ... in order to achieve or promote
the
object of this Act,” there are the constraints implied ex lege or
articulated in the Constitution. In my view, regulation 2(1)(c) is expedient to
achieve or promote the objects of the Act. My
reasons for so thinking will
emerge as this judgment proceeds.
[32] Secondly, even if it were to be
assumed that the legislature intended that the mere happening of the occurrence
should give rise
to a right to compensation by the Fund, it would not follow
that regulation 2(1)(c) would have to be regarded as thwarting that aim.
Of
paramount importance, in my opinion, is that this is a potestative condition
with which it would ordinarily be within the power
of a claimant to comply. The
regulation does not purport to deprive, willy nilly, the victim of a ‘hit
and run’ driver
of ‘the greatest possible protection’ which
the enabling legislation intended him or her to have. It merely requires
the
victim to take a step which it would ordinarily be within the victim’s
power to take, on pain, if the step is not taken,
of not being compensated by
the Fund.
[33] Are there any other grounds upon which regulation 2(1)(c)
can held to be ultra vires? If there is a rational purpose behind the
requirement; if the steps required to be taken to achieve that purpose are not
unreasonable
and serve the purpose; if the requirement is regulatory in
character and furthers the objects of the enabling legislation; and, if
it does
not fall foul of any provision in the Constitution, it cannot be declared to be
invalid.
[34] The purpose of the regulation.
The Fund is
obviously in a parlous position when faced with a claim in a ‘hit and
run’ case. It will have no driver’s
version of the incident
available to it and, if it has to pay the claim, the right of recourse which s
25 of the Act gives it in
such circumstances will be valueless. Fraudulent
claims are an obvious danger in alleged ‘hit and run’ cases. (See
the
case of Mbatha, supra, at 718H.) The obligation placed upon a
claimant by the regulation is obviously intended to discourage fraud and to
provide little
time for plots to be hatched. How effective it has proved to be
or will be or whether there are other and better ways of deterring
fraud and
ensuring bona fides is beside the point. As long as the regulation has
the potential to deter fraud and that potential is not so minimal as to be
derisory,
it cannot be said to have no rational purpose. I turn to that
question.
[35] The compulsory involvement of the police soon after the
incident is alleged to have taken place, and the injury or injuries sustained,
is calculated to make would – be fraudsters apprehensive about embarking
upon such an enterprise. The involvement of the police
would also mean that
there might be a skilled investigation into the alleged incident which might
well reveal it to be a fabrication.
The need to make a statement by way of an
affidavit means that a dishonest claimant would also have to steel himself or
herself to
commit perjury. These are considerations which are conducive towards
making potential fraudsters think more than twice before chancing
their arms. An
early report, although obviously not conclusive, also goes some way towards
showing bona fides and serves at least to eliminate fabricated claims
concocted long after the alleged incident, perhaps at the instigation of
co-conspirators.
[36] Are the steps to be taken unreasonable and
therefore impliedly prohibited by the enabling legislation?
The
requirement of an early report to the police is not, to my mind, unreasonable.
The period within which it must be done is admittedly
very short but, if the
vulnerability of the Fund to fraudulent exploitation of its ‘hit and
run’ liability is to be lessened
in that manner, the time given must needs
be short or the provision will largely fail to achieve its purpose. Moreover,
the obligation
is not absolute: there are two significant and benign
qualifications. First, it must have been reasonably possible to do so, and
secondly, the period of 14 days commences to run only after the claimant is
‘in a position to’ furnish the required affidavit.
That the
particulars of the alleged incident are required to be set out in an affidavit
is also not unreasonable for the reason given
in para [12].
[37] It is of
course so that victims of ‘hit and run’ drivers may be oblivious of
the regulation and may fail to comply
with it through ignorance. As against that
there is the consideration that anyone who suffers injury and loss as a result
of such
flagrantly unlawful conduct on the part of a ‘hit and run’
driver may reasonably be expected to enquire as soon as reasonably
possible what
remedies might be available. More importantly, as I shall illustrate later, the
availability of a claim of this kind
represents an act of legislative largesse.
Steps taken by regulation to minimise, as far as possible, fraudulent
exploitation of
that largesse should not lightly be condemned as unreasonable
even if they may sometimes result in a genuine victim not receiving
compensation.
[38] Is the regulation regulatory in character and does
it further the objects of the enabling legislation?
I have adverted
earlier to the problem of characterising correctly this requirement. It neither
adds to nor subtracts from the foundational
circumstances which the legislature
has decreed must exist before any potential liability can arise, namely,
negligent driving by
an unidentifiable driver of a motor vehicle which results
in physical injury and loss to another. It is therefore not inherently
subversive of the basic thrust of the legislation. Nor is it a purely procedural
requirement within the normal meaning of the word
‘procedural’ in
the context of litigation. Yet failure to fulfil it could result in the loss of
a genuine potential claim.
But the same can be said of a failure to comply with
time limits imposed upon the bringing of an already existing claim and, as has
been seen, these are regarded as legitimate regulatory provisions. Where, as
here, a regulation is plainly designed to avoid the
Fund being duped by
fraudsters into paying compensation to undeserving persons to whom the
legislature did not intend it to be paid,
it cannot be said not to further the
objects of the legislation. It is surely as much an object of the legislation
that the resources
of the Fund not be used to compensate fraudulent claimants as
it is that those resources be deployed only in compensating genuine
victims of
‘hit and run’ drivers.
[39] Does the regulation fall foul
of the Constitution?
There are only two specific provisions in the Bill
of Rights which it was suggested rendered the regulation invalid. I turn to
consider
them.
[40] Equality – s 9 of the Bill of
Rights
Is the victim of a ‘hit and run’ driver unfairly
discriminated against because the regulation imposes a burdensome obligation
upon him or her which is not imposed upon the victim in a case where the driver
is identifiable? It is so, of course, that in both
situations there is a victim
who has been injured and has suffered loss as a consequence of the negligent
driving of a motor vehicle.
They are in the same boat to that extent but they
are very differently placed in other vital respects.
[41] In the case of
the identifiable driver the claimant, but for s 21 of the Road Accident Fund Act
56 of 1996, would have been able
to institute a claim at common law against the
driver. In lieu of that common law claim there is a legislatively conferred
claim
against the Fund. Because the driver is identified, the Fund will, more
often than not, have access to his or her version of what
happened and may be
able to resist successfully an unmeritorious claim. In addition, in a case in
which it is held liable, it may,
depending on the circumstances, even have a
right of recourse in terms of s 25 of the Act against the identified
driver.
[42] In a ‘hit and run’ case, pragmatically viewed,
there will be nobody against whom proceedings could actually have
been
instituted at common law. The existence in theory of such a remedy will be of
cold comfort to the victim. Happily, s 17(1)(b)
of the Act, subject to
regulations made under s 26 of the Act, provides a remedy against the Fund.
However, as I have already
said, the position of the Fund in such a situation is
invidious. It will have no driver’s version available to it and, if it
has
to pay the claimant, the right of recourse which s 25 of the Act gives it in
such circumstances will be valueless. To expect,
as a matter of course,
equality of treatment of two such differently placed claimants is, in my
opinion, an unsound and unjustifiable
point of departure. Apples cannot be
equated with oranges.
[43] Unlike the victim of an identified driver who
is deprived of his or her common law remedy against the driver and given instead
a remedy against the Fund, the victim of a ‘hit and run’ driver is
given a remedy against the Fund even although he or
she would have had no
enforceable remedy at common law. Such a victim is really the recipient of what
may be called legislative social
largesse. Had there been any constitutional
imperative to bestow that largesse the approach to the questions which this case
poses
would have had to be very different but there is none. In short, to the
extent that the obligations which the regulation imposes
upon the victim of a
‘hit and run’ driver are discriminatory, the discrimination is not
unfair to such a victim.
[44] I might add that even if it were so that
equality of treatment is required prima facie, it is at least conceivable
that there might be evidence at the disposal of the Fund which would show that
the difference in treatment
of these different kinds of claimant is justifiable
under s 36 of the Constitution. To decide the point against the Fund at this
belated stage of the litigation when the issue was not raised in the court of
first instance where evidence could have been led,
does not seem
justifiable.
[45] Access to courts – s 34 of the Bill of
Rights.
If the respondent’s claim against the Fund had been one
which lay at common law, I would have had little, if any, doubt that
limitations
upon its invocation of the kind which the regulation imposes would have been
unreasonably restrictive and would have
amounted to an unconstitutional fetter
upon the access to courts for which s 34 of the Bill of Rights makes provision.
Cf Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) and Moise v
Greater Germiston Transitional Local Council: Minister of Justice
intervening 2001 (4) SA 491 (CC). But it is not such a claim. Nor, unlike a
claim against the Fund when there is an identifiable driver, is it
a
legislatively conferred claim given in lieu, and to the exclusion, of an
enforceable common law claim. As I have said, it amounts to a gratuitous
benefit given to a victim of the negligent driving of a motor vehicle
in
circumstances where the victim would have had no enforceable remedy against the
culprit at common law because of inability to
identify the culprit. This
statutory remedy against the Fund was conferred despite the inability of the
Fund to exercise a right
of recourse against the culprit.
[46] That
remedy was not intended to be available come what may. It was to be available
‘subject to any regulation made under
section 26’. The definition of
‘this Act’ in s 1 ‘includes any regulation made under section
26’. But
this obviously can only mean any intra vires
regulation. I have already explained why I consider that this
regulation is not ultra vires on any other ground. The remaining hurdle
of s 34 of the Bill of Rights is one which does not need to be cleared. That
seems to me
to be so because once one concludes that no justiciable claim
against the Fund comes into existence unless and until regulation 2(1)(c)
has
been complied with, it must follow that there is no dispute in existence which
there is a constitutional right to have access
to a court to resolve. To suggest
that the regulation is an unlawful fetter upon access to a court implies that
there is in existence
a justiciable claim. But there is not.
[47] I
agree with Ponnan JA that the respondent failed to comply with the regulation.
Having concluded that it is not ultra vires it follows that, subject to
what follows, the magistrate was correct in upholding the Fund’s special
plea. Section 24(5) of
the Act provides that if the Fund does not within 60 days
of the making of a claim ‘object to the validity thereof, the claim
shall
be deemed to be valid in law in all respects.’ Counsel for the parties
were not able to throw any light upon whether
the Fund had so objected. In the
circumstances an order similar to that made in Road Accident Fund v
Thugwana 2004 (3) SA 169 (SCA at 175-6 should be made. Counsel for the Fund
supported the taking of this course.
[48] It is ordered:
1. The appeal
succeeds with costs, including the costs of two counsel. The order of the court
below and the order of the magistrate
is set aside. The following order is
substituted therefor:
(a) The plaintiff is given leave to file a replication
to raise the provisions of s 24(5) of the Act in answer to the special plea
within 15 days.
(b) If plaintiff fails to do so timeously or within such
further period as this court might allow on good cause shown, the
plaintiff’s
claim is dismissed with costs, and the plaintiff is ordered to
pay the costs of the hearing on the special plea.
(c) The plaintiff is
ordered to pay the costs of the hearing on the special plea.
2. The period of
15 days shall run from the date of this order.
3. The respondent shall pay
the costs of the appeal in the court a quo.
4. In the event of it
being found, or conceded by the appellant, that the respondent’s claim
must be deemed to be valid by virtue
of s 24(5) of the Act, all the costs orders
hitherto made in this order shall fall away and instead each party shall pay his
and
its own costs save that the magistrate must make such order as to the costs
of any hearing on the applicability of s 24(5) as is
considered
just.
______________________
R M MARAIS
JUDGE
OF APPEAL
CONCURRING:
HOWIE P
JONES AJA
SOUTHWOOD
AJA
[1] GNR 609 in Government
Gazette 17939 of 25 April 1997. Although promulgated on 25 April 1997, the
regulations were to operate with effect from 1 May 1997, the
same date as the
commencement of the Act.
[2] The
judgment of the court a quo is reported sub nom Makwetlane v Road
Accident Fund 2003 (3) SA 439
(W).
[3] See Mbatha v
Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713.
'Although
since 1942 legislative amendments and new enactments were required from time to
time in order to adapt to changing needs,
and to refine and improve the whole
system of compensation, the principles and object underlying the 1942 Act and
its successors
have remained unaltered'. (S A Eagle Insurance Company v
Pretorius 1998 (2) SA 656 (SCA) at 659
J).
[4] See also S A Eagle
Insurance Company Ltd v Van der Merwe NO 1998 (2) SA 1091 (SCA) at
1095J
-1096 B; Padongelukkefonds (Voorheen Multilaterale
Motorvoertuigongelukkefonds) v Prinsloo 1999 (3) SA 569 (SCA) at 574A-B; and
National Employers General Insurance Company Ltd v Roberts 1994 (1) SA 38
(A) at 47H.
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