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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no:

PARTIES: CLAUDETTE SEPTEMBER and THE ROAD ACCIDENT FUND

REFERENCE NUMBERS –

• Registrar: 2163/01

• Magistrate:

• Supreme Court of appeal/Constitutional Court: SOUTH EASTERN CAPE DIVISION

DATE HEARD: 3^RD AUGUST 2006

DATE DELIVERED: 12 SEPTEMBER 2006

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

• for the State/Applicant(s)Appellant(s): ADV L SCHUBART

• for the accused/respondent(s): ADV N MULLINS

Instructing attorneys:

• Applicant(s)/Appellant(s): UNGERER, STRUWIG & HATTINGH

• Respondent(s): BOQWANA LOON & CONNELLAN

CASE INFORMATION – CIVIL

• Nature of proceedings: Motor vehicle accident – compensation – limitation of liability in terms of section 18(1)(b) of the Road Accident Fund Act 56 of 1996 – whether a person behind the steering wheel of a vehicle being towed by another vehicle is the driver of the towed vehicle or whether he was being conveyed in the towed vehicle within the meaning of section 18(1)(b) with the result that the claim under the Act is limited to R25 000-00.

• Topic:

• Keywords:

In the High Court of South Africa

(South Eastern Cape Local Division) Case No 2163/01

Delivered: 12/09/06

In the matter between Reportable

CLAUDETTE SEPTEMBER Plaintiff

and

THE ROAD ACCIDENT FUND Defendant

SUMMARY: Motor vehicle accident – compensation – limitation of liability in terms of section 18(1)(b) of the Road Accident Fund Act 56 of 1996 – whether a person behind the steering wheel of a vehicle being towed by another vehicle is the driver of the towed vehicle or whether he was being conveyed in the towed vehicle within the meaning of section 18(1)(b) with the result that the claim under the Act is limited to R25 000-00.

JUDGMENT

JONES J:

[1] On 22 December 1997 one Isaac September (the deceased) sustained fatal injuries when the vehicle in which he was travelling overturned. At the time his vehicle was being towed by a vehicle driven by one Constable. The deceased’s widow and minor children have alleged that the deceased’s vehicle overturned as a result of Constable’s negligent driving of the tow vehicle, and they have claimed damages for loss of support in terms of the Road Accident Fund Act No 56 of 1996. The claims are for R449 571-20 for the plaintiff personally, and R102 585.80 and R134 006-57 for the two children.

[2] A number of issues are in dispute between the parties. By agreement, they have come to trial on a single issue only, which has been separated from the remaining issues in terms of rule 33(4). They have done so on a stated case in terms of rule 33(1). The stated case calls upon me to decide whether or not the claims of the widow and the minor children are limited by the provisions of section 18(1)(b) of the Act to the sum of R25 000-00 each because at the time of his death the deceased was being conveyed in or on the motor vehicle concerned within the meaning of that section.

[3] Section 18(1)(b) reads:

The liability of the Fund . . . to compensate a third party for any loss or damage contemplated in section 17 which is the result of any bodily injury to or the death of any person who, at the time of the occurrence which caused that injury or death, was being conveyed in or on the motor vehicle concerned, shall, in connection with any one occurrence, be limited, excluding the cost of recovering the said compensation, . . . to the sum 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 such person, excluding the payment of compensation in respect of any other loss or damage.

[4] The defendant contends that the deceased was being conveyed in or on the vehicle concerned although he was not physically present in the car driven by Constable. The plaintiff says that he was the driver of the other car. The parties accept that if the deceased was a driver he was not being conveyed in or on the vehicle within the meaning of the section. This is because the definitions of ‘convey’ and ‘driver’ in section 1 and the wording of sections 17 and 18 of the Act make a clear distinction between a driver of a vehicle and a person being conveyed. At issue, then, is whether the deceased was a driver or whether he was being conveyed as a passenger. The definition of ‘driver’ in section 1 is formal, and section 17 is to be interpreted to give the word ‘driver’ its ordinary meaning. Section 20(1) says that a vehicle which is propelled by any mechanical, animal or human power, or by gravity or momentum, shall be deemed to be driven by the person in control of the vehicle.

[5] The Fund’s argument is that in terms of the deeming provision of section 20(1) and the way it was applied in Road Accident Fund v Mkize 2005 (3) SA 20 (SCA) (which held that the driver of the tow vehicle was also the driver of the vehicle being towed), Constable must be regarded as the driver of both vehicles, and the deceased must therefore have been a passenger in the vehicle being towed. In this event, the plaintiff’s claims are limited.

[6] It is indeed so that in terms of Mkize’s case Constable was the driver of the towed vehicle and he was also deemed to be the driver of the vehicle being towed. But in my view the Fund’s argument is nevertheless unsound. It incorrectly fails to appreciate that on a given set of facts the vehicle being towed may be driven by the combined actions of the persons behind the steering wheel of both vehicles. The test laid down in section 20(1) is control: the person in control of the vehicle is deemed to be the driver. The Supreme Court of Appeal applied that test to the facts of the Mkize matter and concluded that on those facts the driver of the tow vehicle was the person in control of the vehicle being towed, and hence he was its driver as well. The person behind the wheel of the vehicle being towed was on the facts a passenger. In coming to this conclusion, Conradie JA is reported as follows in paragraph 4 of the judgment:

A driver obviously drives a vehicle when he or she propels it by manipulating its controls. A person who is not, within the ordinary meaning of the term, 'driving' a vehicle, but is nevertheless in control of a vehicle being propelled by mechanical, animal or human power, or by gravity or momentum, is by s 20(1) of the Act deemed to be the driver of that vehicle. A person who is in control of a vehicle is the one who 'can make it move or not as he pleases'. Since the tanker was at the time of the occurrence a vehicle being propelled by the mechanical power of the tow truck and W J Lehmkuhl, the driver of the tow truck, was the one who could make it move or not as he pleased, Lehmkuhl is deemed to have been its driver.

[7] The Mkize matter was also decided as a stated case. Not all the facts in the stated case are set out in the judgment of the Supreme Court of Appeal, but the stated case is reproduced in the judgment of Jappie J a quo. The facts were that an articulated tanker broke down. For it to be towed by the tow truck, the drive shaft of the tanker was disconnected and the front wheels were raised from the ground. On the instructions of the driver of the tow truck the driver (the plaintiff) and co-driver of the tanker occupied the cab of the tanker. The driver sat in the passenger seat and the co-driver behind the wheel. Although the co-driver occupied the driver’s seat of the tanker he had no control whatsoever of the driving of the tanker. On these facts the court held that the driver of the tow truck was also the driver of the tanker, and the plaintiff’s claim was limited to R25 000-00 because he was being conveyed as a passenger in the vehicle concerned, namely the tanker being ‘driven’ by the driver of the tow truck. Conradie JA explained, with reference to Churchill v Standard General Insurance Co Ltd 1977 (1) SA 506 (A) at 515H - 516F and Santam Versekeringsmaatskappy Bpk v Kemp 1971 (3) SA 305 (A) at 335C – D, that one person can be the driver of two vehicles at the same time.

[8] The facts of this case are entirely different. The drive shaft of the vehicle being towed was not disconnected, its steering mechanism was fully operational, and all four wheels remained on the road surface at all times. It was not attached to the tow vehicle by a rigid metal bar. It was connected to the tow vehicle by means of a tow-rope or chain. Forward propulsion was provided by the tow vehicle. The deceased was not a passive passenger. He was in the driver’s seat of the towed vehicle for a purpose. He was obliged to steer the towed vehicle, he was able to apply its brakes, if necessary, to slow it down or stop it, and he was able to operate its gears. In these circumstances it seems to me that the combined actions of the driver of the tow vehicle and the towed vehicle were jointly necessary for the exercise of proper control over the towed vehicle. The driver of the tow vehicle provided forward propulsion, and manipulated the speed and overall direction of the two vehicles. The driver of the towed vehicle steered it to ensure that it followed a safe course behind the tow vehicle and to prevent it from drifting out of control. Furthermore, he performed the essential function of braking (a) to prevent the towed vehicle from overtaking or driving into the rear of the tow vehicle when it reduced speed, and (b) to keep the tow rope taut while the tow vehicle free-wheeled downhill (in which event he alone controlled the downhill speed of both vehicles). I am of the view that when he performed these functions he was in control of the vehicle being towed within the meaning of section 20(1), and he is deemed to have been the driver thereof. I do not believe that it makes any difference to this conclusion that the driver of the tow vehicle was also a driver of the vehicle being towed. I would merely add that as a general proposition it would be quite unthinkable for a person to attempt to tow a vehicle on a public road using a slack rope or chain without somebody occupying the driver’s seat of the vehicle in tow to keep it under proper control.

[9] The deeming provisions of section 20(1) say that ‘for the purposes of this Act a motor vehicle which is being propelled by any mechanical, animal or human power or by gravity or momentum shall be deemed to be driven by the person in control of the vehicle’ (my italics). In arguing that the deceased was not a driver, that is not the person in control of his vehicle for the purposes of the Act, Mr Mullins submitted on behalf of the Fund that he could only be a driver within the meaning of the section if he performed a positive act of driving which is connected to the cause of the loss. He says that this was not the case on the facts, and he must therefore be a passenger for the purposes of the defendants’ claim. This argument presupposes that the deceased’s act of driving must have been a causa causans of the accident, which in my view is not a requirement of the section. It seems to me that the deceased’s conduct in steering and braking the vehicle while it was being towed and when it overturned amounted to an act of driving the towed vehicle which was sufficient for him to be in control of it. That is all that is required by the section.

[10] It follows from what I have said that the deceased’s vehicle was being driven under tow by both Constable and the deceased, who both performed functions which were essential to maintaining proper control over it. It seems to me that just as it is possible for one person to be deemed to be the driver of two vehicles at the same time, so also is it possible for two persons to be deemed to be the driver of one vehicle at the same time. I think that this is properly accepted for a number of purposes in the law. An example is the provisions of regulation 330 of the National Road Traffic Regulations, 2000 promulgated under the National Road Traffic Act No 93 of 1996. Regulation 330(c) prohibits a vehicle from being towed unless its steering gear is controlled by the holder of a driver’s licence in circumstances where its steerable wheels are not being carried clear of the ground and it is not connected to the towing vehicle in such a way that its steerable wheels are controlled by the towing vehicle. This implies that it is being driven not only by the driver of tow vehicle but by the person behind the wheel of the vehicle being towed. Why require a valid driver’s licence if the person in the vehicle being towed is not a driver? Also, a person could not be convicted of driving a vehicle under tow without a valid licence or while under the influence of intoxicating liquor if the vehicle is regarded as being driven solely by the driver of the tow vehicle. See S v Kaperi 1960 (1) SA 216 (SR); 1960 (2) SA 163 (FC), and S v Ekstraal 1981 (4) SA 406 (C).

[11] If the deceased was a driver, the conclusion would seem to be that he was not a passenger being conveyed in the vehicle within the meaning of section 18. I have mentioned above (in paragraph 4) that this was indeed accepted by the parties. But during the course of preparing this judgment it occurred to me that there may be another way of looking at this legislation. Is it possible on these facts to conclude that although the driver of the vehicle being towed exercised a sufficient degree of control over that vehicle to be deemed by section 20(1) to be its driver or one of its drivers, he was nevertheless at the same time a passenger being conveyed in the towed vehicle for the purposes of a claim under the Act? Was he a driver of the towed vehicle, for example, for the purposes of drunken driving or driving without a valid licence or causing damage to a pedestrian by negligently steering on to the pavement while being towed? But within the framework of his dependants’ claim under the Act, was he being conveyed in a combination of vehicles being driven by Constable? Although conscious of the irritation caused by judges who set up skittles and then knock them down, I called for further argument from counsel on this point, and I am grateful to them for their assistance.

[11] The conclusion that the deceased was a driver for certain purposes but not for the purposes of his dependants’ claim involves subtleties which do not commend themselves to me. It seems to me to be a contrived and artificial approach, and not a proper way to interpret and apply legislation like this, which is designed to benefit as many victims of road accidents as possible. I am in agreement with the argument by Mr Schubart for the plaintiff that such an interpretation is not in accordance with the plain meaning of the word ‘driver’ or the phrase ‘being conveyed in or on the motor vehicle concerned’ as used in the Act. He argued that it is also not in accordance with common sense that a person can be the driver of a vehicle for some purposes but not for others. He postulated the situation where, during the towing process, the vehicles stop at a stop street, and the driver of the tow vehicle negligently reverses into the front of the vehicle being towed, killing or injuring the ‘driver’ thereof. It does not make sense to conclude that the driver of the tow vehicle killed or injured his own passenger in these circumstances.

[12] My conclusion is that the deceased was not being conveyed in or on either of the vehicles within the meaning of section 18(1)(b) when the vehicle being towed overturned and he was fatally injured. He was one of the drivers of the vehicle being towed. This means that his dependants’ claims are not subject to the limitation of section 18(1)(b) and I should issue an order in terms of paragraph 7 of the stated case. There will accordingly be an order

1. declaring that the plaintiff’s claim is not limited to R25 000-00 per dependant as provided for in section 18(1)(b) of Act No 56 of 1996;

2. that the defendant pay the plaintiff’s taxed party and party costs relating to the stated case;

3. that the remaining issues be dealt with in accordance with the rules of court.

RJW JONES

Judge of the High Court

6 September 2006

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