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CONGTANTIA INSURANCE COMPANY LIMITED APPELLANT

and

THELMA HEARNE (born VYVER) RESPONDENT

HEFER JA.

IN THE SUPREME COURT OF SOUTH AFRICA

APPELLATE DIVISION

IN THE MATTER BETWEEN

CONSTANTIA INSURANCE COMPANY LIMITED APPELLANT
and
THELMA HEARNE (born VYVER) RESPONDENT

CORAM: RABIE,CJ, JANSEN, HOEXTER, HEFER,JJA, et NESTADT, AJA.

HEARD : 25 FEBRUARY 1986. DELIVERED : 25 MARCH 1986.

JUDGMENT

HEFER, JA :

The respondent issued summons in the Court

below 2

2.

below to recover from the appellant the damages which

her two minor daughters allegedly suffered as a result

of the death of their father when he fell from a moving

vehicle insured by the appellant in terms of the pro-

visions of the Compulsory Motor Vehicle Insurance Act

56 of 1972 ("the Act"). It was alleged in the particu-

lars of claim that the deceased was a workman as defined

in the Workmen's Compensation Act, No 30 of 1941,and an employee

of the owner of the vehicle when the incident occurred.

Appellant's liability was accordingly limited in terms

of section 22(2) (a) of the Act. The appellant excep-

ted to the particulars of claim but, in a judgment re-

ported in 1984(4) S A 48 (E C D), SMALBERGER J dismissed

the exception .... 3

3.

the exception. Leave was subsequently granted to

the appellant to appeal to this Court.

The allegations in the particulars of claim

and the main thrust of the exception are summarised in

the judgment and there is no need to repeat them. The

issue appears from p 5 0B-C of the. report ,viz "is the

liability of an insurer under the Act to the dependants

of a deceased workman limited by the provisions of s 22

(2) (a) of the Act to R12 000 in respect of the claim

of each dependant, or to an overa11 amount of Rl2 000

irrespective of the number of claims by dependants?" .

Although the answer to this question must

eventually be provided by section 22(2) (a) itself some

of.....4

4

of the other provisions of section 22 and of section

21(1) are also relevant. I need not quote the well-

known provisions of section 21(1) which are the source

of an insurer's liability in terms of the Act. Their

effect is that the insurer is obliged to compensate,

subject to the provisions of the Act, any person what-

soever (the third party) for any loss or damage which

the third party has suffered as a result of any bodily

injury to himself,or the death of or any bodily injury

to any person ,in the circumstances described in the sec-

tion .

Section 22 contains certain limitations on

an insurer's liability. It reads as follows:

"22 5

5.

"22. (1) The liability of an authorised insurer in connection with any one occurrence to compensate a third party for any loss or damage contemplated in section 21 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 -

(a) was being conveyed in the motor
vehicle in question -

(i} for reward; or

(ii) in the course of the business of the owner

of that motor vehicle; or (iii) in the case of an employee of

the driver or owner of that motor vehicle, in respect of whom subsection (2) does not apply,in the course of his employment; or (iv) for the purposes of a lift club where that motor vehicle is a motor car insured in the prescribed manner in terms of this Act for those purposes; or

(b) was in the act of entering or mounting

the.....6

6.

the motor vehicle in question for the purpose of being conveyed as referred to in paragraph (a ) ; or

(c)	was in the act of alighting from the motor vehicle in question after having been conveyed as referred to in paragraph (a); or
(d)	was being conveyed in the motor vehicle in question under circumstances other than the circumstances referred to in paragraph (a) or was in the act of entering or mounting the motor vehicle in question for the purpose of being so conveyed or was in the act of alighting from the motor vehicle in question after having been so conveyed ,

shall be limited, except where the person concerned was conveyed in or was in the act of entering or mounting or alighting from the motor vehicle in question while proceeding on authorized leave or returning to his base from such leave during any period in which he rendered military

service 7

7.

service or underwent military training in terms of the Defence Act, 1957 {Act No. 44 of 1957), or while dressed in a uniform of the South African Defence Force during such period, or under circumstances where the owner or driver of the motor vehicle believed upon reasonable grounds that he was a person rendering such service or undergoing such training and dressed in such a uniform -

(aa) in any case referred to in paragraph (a), (b) or (c), to the sum of twelve thousand rand in respect of any bodily injury to or the death of any one such person;

(bb) in any case referred to in paragraph (d), to the sum of twelve thousand rand in respect of loss of income or of support and the costs of accom-

odation in a hospital or nursing home, treatment, the rendering of a service and the supplying of goods resulting from the death of or bodily injury to any one such person, excluding the payment of compensation

in......8

in respect of any other loss or damage,

but exclusive of the cost of recovering the said compensation.

( 2 ) Where the loss or damage con tern-plated in section 21 is suffered as a result of bodily injury to or the death of an employee of the driver or owner of the motor vehicle and the third party is entitled to compensation under the Workmen's Compensation Act, 1941 (Act No. 30 of 1941), in respect of such injury or death -

(a) the liability of the authorized insurer to that third party shall be limited to the sum representing the difference between the amount which that third party could,but for the provisions of this paragraph, have claimed from the insurer or the amount of twelve thousand rand (whichever is the lesser) and any lesser amount to which that third party is entitled by way of compensation under the said Act; and

b

9.

(b)

(c) the authorized insurer shall not
be liable under the said Act for
the amount of the compensation to
which any such third party is en-
titled thereunder,

without, however, any liability of: the authorized insurer to pay costs awarded against it in any legal proceedings being affected by anything in this subsection contained. "

A preliminary examination of section 2 2 reveals that two distinct and unrelated situations are provided for in subsections {1) and {2) respectively. Subsection (1) deals with cases in which a passenger in the insured vehicle is injured or killed. (I shall refer in this judgment to the persons listed in subsection (1) (a) to (d) collectively as passengers despite

the 10

10.

the provisions of paragraphs (b) and (c) ). Subsec-

tion ( 2 ) deals with cases where an employee of the

driver or owner of the insured vehicle is injured or

killed and the third party is entitled to compensation

in terms of the Workmen's Compensation Act as a result

of such injury or death, i e where the employee in ques-

tion was a workman, as defined in that Act, at the rele-

vant time. Separate provision is made in subsections

(1) (aa) and (2) (a) for a limitation of the insurer's

liability to third parties in both types of cases. A

workman may, of course, be injured or killed while being

conveyed as a passenger in the insured vehicle and to

that extent subsections (1) and (2) overlap. But in

such 11

11.

such cases it is obviously the limitation in subsection

(2) (a) which applies.

The interpretation of subsection (2) (a),

read by itself, presents no problem. Its words are

perfectly plain and appellant's counsel rightly conceded

prime facie its correct interpretation is that, in

cases where there are several third parties, the limita-

tion of the insurer's liability applies to each of them

separately. He argued, however, that the prima facie

meaning of subsection (2) (a) must yield to indications

of a different intention elsewhere in section 22; that

subsection (1) (aa), correctly construed, contains a

limitation of an insurer's total liability to all third

parties 12

12.

parties; that it is unlikely that the legislature's

intention was to provide for a different type of limi-

tation in subsection ( 2 ) (a); and that subsection (2)

(a) must accordingly be interpreted in the same way as

subsection (!) (aa).

The correctness of the submission depends

primarily on the interpretation of subsection (1) (aa ) .

If the correct interpretation of that subsection is not

the one for which appellant. contends, the whole argument

founders. It also founders if that interpretation is

found to be correct, but the submission relating to the

effect of subsection (1) (aa) on the interpretation of

subsection (2) (a) is rejected. One may dispose of

the 13

13.

the appeal by assuming the correctness of the in-

terpretation of subsection (1) (aa) for which appellant

contends,and by dealing merely with the second leg of

the argument. The temptation to do so is strong for

it will certainly be the easiest way to follow. But

the interpretation of subsection (1) {aa) is important

and I have decided to approach the matter from that end

In discussing subsection (1) (aa) T shall refer to the

type of limitation flavouring the appellant ( i e a limi-

tation of an insurer's total liability to all third par-

ties ) as a collective limitation, and to the type of

limitation which favours the respondent (i e a limitation

of an insurer's liability to each individual third party)

as 14

14

as an individual limitation.

The pith of the relevant part of subsection (1) (aa) is that -

"The liability of an authorized insurer

to compensate a third party

shall be limited

to the sum of R12 000

in respect of any bodily in jury to or the death of any one such person."

Appellant's counsel argued that the words
"in respect of any bodily injury to or the death of any one such person" indicate the respect in which the insurer's liability is limited. The limitation, so the argument went, was intended to operate, not in respect of third parties, but in respect of the persons injured or killed.

This 15

15.

This entails that its extent depends on the number of

persons injured or killed, and not on the number of

third parties. The number of third parties is irre-

levant; all that is required in order to determine

the maximum extent of the insurer's liability in any

particular case, is to determine the number of persons

injured or killed; in the case of one such person, the

maximum liability is R12 000 and it remains R12 000 ir-

respective of the number of third parties involved.

The problem which I have with this approach

is that it does not give effect to all the words of the

provision. It overlooks the fact that subsection (1) (aa

speaks of an insurer's liability to_ compensate a third

party 16

16.

party and limits that liability in the defined respect

The words "to compensate a third party" cannot be re-

garded as mere verbiage. They are obvious1y descrip-

tive of the liability and they cannot: be ignored. The

only question is : what do they mean?

In the words of section 21(1 ) a third party

means "any person whatsoever" (who has suffered a loss

recoverable in terms of the Act). Now,"any person what-

soever" may mean a number of things depending on the use

to which it is desired to be put. In section 21(1) e g

it may mean "every person whatsoever", or "each person

whatsoever", or "all persons whatsoever" . Any one of

these expressions may be substituted equa1ly fittingly

for 17

17.

for the one actually used without doing violence to the

wording and without affecting the application of sec-

tion 21(1) at all; it really makes no difference which

expression one prefers to use. In subsection (1) (aa) ,

however, the position is obviously entirely different.

There, the same degree of flexibility could not have

been intended for it is inconceivable that the legisla-

ture could have intended anything but a specific and

precise meaning to be attached to its description of

the liability which it was limiting. It must accor-

dingly be assumed that a specific and precise meaning

was intended to be attached to the words "to compensate

a third party".

Havinq 18

18

Having said that, I have really also said

how subsection (1) (aa) is to be interpreted. The

only specific meaning which the words in question can

have, is the literal one. What is limited, is the in-

surer's liability to compensate "a third party " . And

so construed, the limitation is individual, not coliec-

tive.

This interpretation of subsection (1)(aa)

is based, of course, on the use of "a third party" in

the singular. There is a suggestion in The Law of

Compulsory Motor Vehicle Insurance by Suzman, Gordon

and Hodes (3rd ed) at p 264 that that expression is

to be read as including the plural, i e that the

reference 19

19

reference in subsection (1) (aa) to "a third party"

must be read as "a third party or third parties", in

accordance with the provisions of section 6(b) of the

Interpretation Act, 1957. That is precisely what was

done in Du Plooy v Suid-Afrikaanse Onderlinge Brand-

en Algemene Assuransie Maatskappy Beperk 1975(1) S A

791(0) at p 799 in respect of the forerunner in Act

29 of 1942 of the present subsection (2) (a). But I

do not support that view. Section 6 (b) of the in-

terpretation Act provides that, in any Act, words in

the singular shall include their plural unless a con-

trary intention appears. In the case of subsection

(1) (aa) a contrary intention does appear. In order

to 20

20.

to test this one may compare the effect of the pro-

vision as it stands with the effect which it would have

if section 6(b) were applied. In dealing with the wor

ding of subsection (1) (aa) I indicated that it manifests

an intention to impose an individual limitation on an

insurer's liability. If "third parties" were to be

substituted in subsection (1)(aa) for "a third party"

(which, in terms of section 21(1), would then refer to

the insurer's liability to "all persons whatsoever"),

the construction and effect of the provision would change

dramatically for the limitation would then plainly be-

come collective. It would acquire a new meaning con-

trary to the one which its actual wording conveys. That

would 21

21.

would also be the result if "a third party or third

parties" were to be substituted for "a third party".

A contrary intention, therefore, does appear and sec-

tion 6(b) cannot be applied.

There is, however, another way in which

the same conclusion as to the interpretation of subsec-

tion (1) (aa) may be reached. In view of the extremely

wide provisions pf section 21(1), this Court has repeated-

ly held that the general object of the Act is "to afford

third parties the widest possible protection against

loss sustained through the negligent or unlawful driving

of a motor vehicle" (per RUMPFF CJ in Union and South

West Africa Insurance Co Ltd v Fantiso 1981(3) S A

293 22 -

22.

293 (A D) at p 300). That being the case, this Court

has also pronounced that words of uncertain meaning ap-

pearing in provisions of the Act in which an insurer's

liability is limited, must be interpreted in favour o:

third parties and against insurers. (A A Mutual In-

surance Association Ltd v Biddulph and Another 1976(1)

S A 725 (A D) at p 738; Van Blerk v African Guarantee

and Indemnity Co Ltd 1964(1) S A 336 (A D) at p 341;

Ngubetole v Administrator,Cape and Another 1975(3) S A

S A 1 (A D) at p 8). Assuming then that the wording

of subsection (1) (aa) is not sufficiently clear to jus-

tify the interpretation which I have given it, that in-

terpretation is at least a possible one. It is the

one .23

23.

one which favours third parties and it is the one which

is to be accepted in preference to the one for which

the appellant contends.

Two further matters remain. The first re-

lates to the words "in respect of any bodily injury to

or the death of any one such person" in subsection (1)

(aa). To these words effect must obviously also be

given. Since several passengers in the insured vehicle

may be injured or killed in the same incident, thus ren-

dering the insurer liable in respect of the injury or

death of each of them, the section provides that the

limitation shall operate accordingly. This is not

merely stating the obvious, for cases may occur where

the 24

24.

the same third party is affected by the injury or death

of several passengers. In a single incident a woman

may e g be injured, and her husband on whom she was de-

pendent, killed and both parents from whom a minor had

received maintenance, may be killed in the same incident.

Had the insurer's liability not been limited in respect

of the injury or death of each passenger the third party

would not have been entitled to recover more than R12 000

from the insurer. By giving effect to the words of

subsection (1) (aa) as a whole the position, as I see

it, is accordingly that an insurer is liable to each third

party in respect of injury to or the death of each pas-

senger for a maximum amount of R12 000.

The 25

25.

The other matter concerns the decision in

Du Plooy's case (supra) and the question whether a

departure from the words in subsection (1) (aa) is jus-

tified . In that case the forerunner of the present

subsection (2) (a) in Act 29 of 1942 was considered. Pro-

viso (ii) to section 11(1) of Act 29 of 1942 contained

provisions which were almost identical to those

of subsection (2) (a) relating to injury to or the death of

workmen as defined in the Workmen's Compensation Act. The

liability was limited to R8 000 in respect of injury to

or the death of one workman and to R40 000 in all in re-

spect of injury to or the death of more than one (less

the amount of compensation to which the third party was

entitled 2

26.

entitled). SMUTS J,as he then was, found that the limitation was an individual one according to the literal meaning of proviso (ii), but departed from that meaning in view inter alia of the anomalous result which would flow from a literal interpretation. The learned judge described the anomaly as follows (at p 799 of the report)

" Indien 'n werknemer slegs beseer en nie gedood word nie sal dit beteken dat die aanspreeklikheid van die versekeraar be-perk sal wees tot R8 000 terwyl as hy sterf en afhanklikes hot, die aanspreeklikheid van die versekeraar verhoog word tot R40 000. Hierdie sou ^!n benadering wees tot die basis waarop skadevergoeding aan afhanklikes toegeken word wat indruis teen alle bestaande beginsels wat daarop be trekking het. In die geval van 'n ge-meenregtelike eis om skadevergoeding deur 'n afhanklike word die skade wat hy gely

net 27

27.

het gebaseer op die waarskynlike inkomste

wat die oorledene sou verdien het indien

hy nie onwettiglik gedood was nie en 'n af-

hanklike word dan vergoed in die bedrag

wat hy kon verwag het om van die oorledene

te ontvang het. So 'n bedrag kan nooit meer

wees as wat die oorledene sou ontvang het
indien hy nie gedood is nie maar wel so

erg beseer is dat sy werksvermoë hom totaal

ontneem is. Indien die vertolking wat mnr.

Kotze betoog aan die artikel geheg moet word,aanvaar word,

sal dit beteken dat selfs waar 'n werknemer

so erg beseer is dat hy nooit weer kan werk

nie die geregistreerde maatskappy aanspreek-

lik is tot 'n bedrag van hoogstens R8 000

maar waar die werknemer sterf van sy bese-

rings is die versekeraar aanspreeklik teen-

oor sy afhanklikes tot die bedrag van R40 000."
In considering this so-called anomaly care should be taken not to obliterate the essential difference between the right of an injured person to be

compensated 28

28

compensated for his injuries and for any pecuniary

loss suffered as a result thereof, and the right of

a dependant to recover his loss of support in case

of the death of the person on whom he was dependent.

Nor should sight be lost of the fact that in the lat-

ter case the dependant's claim is subject to deductions

(e g accruals to him from the estate of the deceased),

which is not the case when a person is injured. Viewed

in this manner the anomaly loses much of its signifi-

cance . And it becomes even less significant if account

is taken of the fact that section 22 is by no means a

model of consistency, and that equal treatment of third

parties is not one of its redeeming features. Reference

was....29

29.

was made in Santam Insurance Ltd v Taylor 1985(1)

S A 514 (A D) at p 529-530 to what BOTHA JA called

" favoured" passengers and "specially favoured" passengers ,

in order to illustrate the differentiation between

various classes of passengers. There is differen-

tiation too between passengers who are workmen and

those who are not. And even between workmen there

is a startling degree of differentiation. An insu

rer's liability in respect of injury to or the death

of a workman is limited to the extent which subsection

(2) (a) prescribes,if the workman is employed by the

driver or owner of the insured vehicle; if he is not,

the liability is wholly unlimited. Thus, if two

craftsmen 30

30.

craftsmen working side by side on a building site were,
in circumstances giving rise to liability, to be in -jured by a truck belonging to the main contractor, and if the one craftsman were to be employed by the main contractor and the other by a subcontractor, the former would be entitled to recover from the insurer no more than R12 000 whilst the other would be entitled to be fully compensated. Departure from the literal meaning of a statutory provision on account of anomalous or unreasonable results is only justified if the Court is satisfied that such results were not intended ( Bhyat v_Commissioner for Immigration 1932 A D 125 at p 129). In view of the foregoing I am far from satisfied that

that 31

31.

that can be said of the result mentioned by SMUTS J.

There is accordingly no reason for departing from the

literal interpretation of subsection (1 ) (aa) .

Having interpreted subsection (l){aa) against

the appellant, it is unnecessary to consider the possible

effect of that provision on the interpretation of sub -

section (2) (a) .

The exception was rightly dismissed and

the appeal is accordingly dismissed with costs.

J J F HEFER JA RABIE,CJ. )
JANSEN,JA. )

CONCUR.
HOEXTER,JA. ) NESTADT,AJA. )

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