MAHAMBO v ROAD ACCIDENT FUND 2005 (6) SA 475 (T) 2005 (6) SA 475 (T) Transvaal Provincial Division Patel J

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1 MAHAMBO v ROAD ACCIDENT FUND 2005 (6) SA 475 (T) 2005 (6) SA p475 Citation Case No 25080/02 Court Judge 2005 (6) SA 475 (T) Transvaal Provincial Division Patel J Heard July 26, 2005 Judgment July 26, 2005 Counsel Annotations L F Bezuidenhout for the plaintiff. J F Grobler for the defendant. Link to Case Annotations Flynote : Sleutelwoorde Motor vehicle accidents - Compensation - Claim for in terms of Road Accident Fund Act 56 of Unidentified owner or driver - Provision in reg 2(3) issued in terms of s 26 of Act that claims for compensation involving injury caused by unidentified vehicles to be lodged within two years from date upon which claim arose - Regulation not unfairly discriminating against minors. Headnote : Kopnota The plaintiff, in her capacity as the sister of a minor child, instituted an action against the defendant for the child's loss of support arising from a collision in which the child's mother was killed when an unidentified motor vehicle collided with her. In a special plea, the defendant denied liability on the ground that no valid claim was lodged before the expiry of the two-year period as prescribed by reg 2(3) of the Regulations promulgated in terms of the Road Accident Fund Act 56 of On behalf of the plaintiff it was contended that reg 2(3), which dealt exclusively with hit-and-run accidents, was unconstitutional because it discriminated against a minor who had a claim against the fund when the claim arose from a hit-and-run collision. Held, that in terms of the regulations, and more specifically reg 2(3), all third parties were equal and obtained exactly the same rights in terms of s 17(1)(b) of the Act (which created a statutory right that did not exist at common law). Regulation 2(3) did not therefore introduce an invasion of any of the minor's constitutional rights. If this provision was tested against the Bill of Rights it appeared that it did not infringe on any of those rights since the limited right created by s 17(1)(b) applied equally and afforded equal protection and benefit to all third parties. A comparison of the rights of minors who claimed on the basis of a hit-and-run claim with the rights of minors who claimed on the basis of an identified wrongdoer in order to establish whether a right was being invaded would be inappropriate as such a comparison would have to presuppose that the right created in terms of s 17(1)(b) included the rights of minors to be protected against the running of prescription and that reg 2(3) then invaded this right. This was untenable and no constitutional rights were invaded. Accordingly the defendant's special plea had to be upheld. (Paragraphs [21] and [26] at 482G - J and 484I/J - 485A.)

2 Cases Considered Annotations Reported cases Bezuidenhout v Road Accident Fund 2003 (6) SA 61 (SCA): referred to Geldenhuys & Joubert v Van Wyk and Another; Van Wyk v Geldenhuys & Joubert and Another 2005 (2) SA 512 (SCA) ([2005] 2 All SA 460): compared Hartman v Minister van Polisie 1981 (2) SA 149 (O): referred to Hlongwane v Multilaterale Motorvoertuigongelukkefonds 2000 (1) SA 570 (T): referred to Mbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA) ([1997] 2 All SA 483): referred to Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) (1996 (12) BCLR 1559): applied Moloi and Others v Road Accident Fund 2001 (3) SA 546 (SCA): referred to Road Accident Fund v Makwetlane 2005 (4) SA 51 (SCA): applied Road Accident Fund v Scholtz 2003 (5) SA 362 (SCA): referred to Road Accident Fund v Thugwana 2004 (3) SA 169 (SCA): compared 2005 (6) SA p476 SA Eagle Insurance Co Ltd v Pretorius 1998 (2) SA 656 (A) ([1998] 1 All SA 131): referred to. Statutes Considered Statutes The Road Accident Fund Act 56 of 1996 s 17(1)(b): see Juta's Statutes of South Africa 2004/5 vol 4 at Regulations Regulation 2(3) of the Regulations made in terms of s 26 of the Road Accident Fund Act 56 of 1996: see Government Gazette of 25 April Case Information Argument on a special plea. The facts appear from the reasons for judgment. L F Bezuidenhout for the plaintiff. J F Grobler for the defendant. Judgment Patel J: Introduction [1] The plaintiff, Daphney Mahambo, in her capacity as the sister of the minor child,

3 Sibongile Lynette Mahambo, instituted an action against the defendant, the Road Accident Fund (the fund) for loss of support arising from a collision on 2 June The mother of the plaintiff and the minor (the deceased) was a pedestrian along the Garsfontein Road when an unidentified motor vehicle collided with her. The deceased was fatally injured. [2] The defendant filed a plea. Except for admitting that it is liable to handle the claim, it pleaded that the deceased was not involved in a collision either as alleged or at all. In essence, the defendant denied liability and refused to pay. [3] Subsequently the defendant filed an amended plea in which it raised a special plea, which reads as follows: '1. The plaintiff's cause of action against the defendant arose on 2 June In terms of reg 2(3) of the Regulations promulgated in terms of s 26 of the Road Accident Fund Act, 1996 (the Act), the plaintiff's claim against the defendant had to be properly lodged with the defendant before the expiry of two years from the date on which the cause of action arose, irrespective of any legal disability to which the third party concerned may be subject. 3. A valid claim should have been lodged with the defendant before or on 1 June The plaintiff purported to lodge a claim against the defendant on 8 May PATEL J 2005 (6) SA p Consequently, no valid claim against the defendant was lodged before the expiry of the two-year period as prescribed by reg 2(3) of the regulations promulgated in terms of the Act.' [4] In response to the defendant's special plea, the plaintiff replicated and pleaded as follows: '2.2.1 The provisions of reg 2(3) of the regulations promulgated in terms of s 26 of the Road Accident Fund Act, 1996, is ultra vires The prescription period within which the plaintiff's claim has to be lodged with the defendant is governed by the provisions of ss 13 and 16 of the Prescription Act 68 of The provisions of reg 2(3) of the regulations promulgated in terms of s 26 of the Road Accident Act, 1996, which are in conflict thereof, are unenforceable Regulation 2(3) of the regulations promulgated in terms of s 26 of the Road Accident Fund Act, 1996, is in any event unconstitutional, as it discriminates against minors who have a claim against the defendant, when the claim is a claim arising from a collision, where the identity of neither the owner nor the driver can be established.' [5] It is common cause that the claim was lodged with the defendant on 8 May [6] The parties agreed that the issue raised by the defendant's special plea should be dealt with pursuant to a stated case in terms of Rule 33(4) of the Uniform Rules. Plaintiff's argument [7] The main theme of the plaintiff's argument advanced by Mr Bezuidenhout is that reg 2(3), promulgated in terms of s 26 of the Road Accident Fund Act 56 of 1996, is not ultra

4 vires. 1 However, it is unconstitutional because it discriminates against a minor who has a claim against the fund when the claim arises from a collision where the identity of neither the owner nor the driver of the vehicle can be established. [8] Counsel also submitted that the provisions of ss 13 and 16 of the Prescription Act 69 of 1969 applied to the regulations promulgated in terms of the provisions of s 6 of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 and that the two-year period provided for in reg 3(2)(i) and (ii) 2 was therefore unenforceable. 3 Thus, for the same reasons, the provisions of reg 2(3) in terms of the two-year period is also unenforceable. PATEL J 2005 (6) SA p478 [9] It was further submitted that, based on the decision of Road Accident Fund v Scholtz, 4 a claim by a minor, where the identity of the driver or owner of a vehicle involved in a collision is known, prescription only starts to run from the date on which the minor attains majority. Therefore, in the light of that decision, the provisions of reg 2(3) are discriminatory and unconstitutional because only a two-year period is afforded the minor, and the minor is not offered the same protection as minors in general and minors where the identity of the driver or owner of the vehicle is known. Thus, it was submitted that the Road Accident Fund Act like its predecessor the Multilateral Motor Vehicle Accidents Fund Act, were promulgated to afford the widest possible protection to victims of motor vehicle accidents. 5 Relevant statutory and regulatory provisions [10] Section 17 is an important provision since it determines the fund's liability. It distinguishes between cases where the owner or driver is identified and those where neither is identified. Section 17(1) provides that the fund shall be obliged to compensate any person for specified loss or damage '(a) (b) 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 driver thereof has been established; subject to any regulation made under s 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'. [11] Section 26 empowers the Minister of Transport to '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] Regulation 2(3) was issued under s 26. It provides that an unidentified vehicle claim 'shall be sent or delivered to the fund, in accordance with the provisions of s 24 of the Act (prescribing procedures for lodging a claim), within two years from the date upon which the claim arose, irrespective of any legal disability to which the third party concerned may be subject and notwithstanding anything to the contrary in any law' (6) SA p479

5 PATEL J [13] Regulation 2(4) provides that once a claim has been sent or delivered to the fund within the two-year cut-off, the liability of the fund 'shall be extinguished upon the expiry of a period of five years from the date on which the claim arose, irrespective of any legal disability to which the third party concerned may be subject and notwithstanding anything to the contrary in any law, unless a summons to commence legal proceedings has been properly served on the fund before the expiry of the said period'. Regulation 2(3) is intra vires [14] The prescribing of time limits is inherent in the right to regulate. 6 There are good reasons to impose more stringent time limits relating to 'unidentified claims' as opposed to the time limits applicable to 'identified claims'. 7 The main difference between 'unidentified claims' and 'identical claims' is that in the case of an 'identified claim' the third party's claim is against the fund instead of against the wrongdoer, whereas in the case of an 'unidentified claim' the third party is given an enforceable right in a case where he would have had no such right if it had not been for the third party legislation. 8 The obligation to compensate the third party in respect of unidentified claims is in terms of s 17(1)(b). It is specifically enacted to be subject to the regulations. [15] Mr Grobler for the defendant argued that the Minister, in terms of s 26, is obliged to make regulations to prescribe the fund's obligation within the framework of the object of the Act. Regulation 2(3) is not ultra vires because it deals with the procedural aspects relating to the lodgement and perusal of claims and not with the determination of liability contrary to the object of the Act. Regulation 2(3) cannot be held to be ultra vires because the regulation does not exclude or limit the liability of the fund further than the liability provided for in the framework of the statutory provisions. It merely prescribes a time limit which is inherent in the right to regulate. [16] Section 23 of the Act deals with the prescription of only 'identified claims': '23 Prescription of claim (1)... the right to claim compensation under s 17 from the fund or an agent in respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of the driver or the owner thereof has been established... '. The wording of s 23 and the words used in s 17(1)(b) to the effect that the fund or an agent shall be obliged to compensate any person subject to any regulation made, clearly indicates that the Minister is indeed empowered, by virtue of delegated authority, to determine the prescription period in the regulations. 9 The prescription periods for all third PATEL J 2005 (6) SA p480 parties who claim on the basis of the negligence of an unidentified vehicle are the same and are prescribed in regs (3) and (4) of the regulations promulgated in terms of s 26 of the Act, It is specifically legislated that the aforementioned prescription period applies 'irrespective of any legal disability... and notwithstanding anything to the contrary in any law'. [17] The relevant statutory provisions and the regulations, more particularly regs 2(3) and (4) recently received the attention of the Supreme Court of Appeal in Geldenhuys &

6 Joubert v Van Wyk and Another; Van Wyk v Geldenhuys & Joubert and Another, 10 where Cameron JA stated: '[10] The provisions of s 21 are important to understanding the impugned regulation. This provides that when a third party is entitled to claim compensation, he or she may not claim from the owner or driver or the driver's employer, unless the fund is unable to pay. This has significant implications. In a case where the claimant can trace the vehicle or the driver, the provision means that the claimant loses a valid claim against an identifiable wrongdoer. In effect, the Act substitutes the fund as surrogate for a known wrongdoer, and replaces an enforceable common-law claim with a statutory claim against the fund. [11] In the case of an unidentified vehicle, this by definition is not so. There is no identifiable wrongdoer to sue, and the injured party is remediless. The legislation instead creates a claim for compensation where otherwise there would have been none. The fund is not substituted for a wrongdoer in hand, but intervenes to offer recourse where none existed before. [12] It is for this reason that the distinction the legislation makes between identified vehicle and unidentified vehicle cases is fundamental. This Court's decisions have repeatedly underscored its implications, most recently in Bezuidenhout v Road Accident Fund. The legislation specifies that loss or damage involving identified vehicles must be compensated on terms expressly set out in the statute itself (''subject to this Act''). By contrast, with unidentified vehicle claims, the Minister is given power to subject payment of compensation to a regulatory scheme, and thus to determine the conditions subject to which compensation may be granted (''subject to any regulation made under s 26''). [13] In accordance with this distinction, s 23, which deals with prescription of claims, provides that the right to claim compensation in identified vehicle cases prescribes after three years (s 23(1)). This matches the ordinary period of prescription for debts under the Prescription Act (s 11(d)). It reflects the fact that the claimant in an identified vehicle case forfeits a claim against a known wrongdoer and is obliged to seek recourse from the fund instead. The three-year prescription period against the known perpetrator is replaced with an equivalent period against the fund. [14] In consonance with this, s 23(2) provides that in identified vehicle cases prescription shall not run against a minor, a person detained as a patient in terms of any mental health legislation or a person under curatorship. Again, this reflects the ordinary regime under the Prescription Act, because the minor (or person under other disability) forfeits a claim against a known perpetrator. [15] In unidentified vehicle cases, by contrast, the Minister has determined that, to be valid, claims of adults and minors alike must be sent or delivered to the PATEL J 2005 (6) SA p481 fund within two years. Once so lodged, claimants have a five-year period from the incident within which to issue summons (regs 2(3) and 2(4)). This regulatory scheme thus differs in two ways from the periods the statute determines for the prescription of identified vehicle claims. First, the two-year period for lodging a claim is one year shorter than the prescription period the statute specifies for identified vehicle claims; and, second, the regulatory scheme makes no special allowance for minors. In both cases, however, once a claim is lodged in terms of s 24, there is a five-year period from the date of the accident within which summons must be issued (s 23(3) in the case of identified vehicles; reg 2(4) in the case of unidentified vehicles). [16] The reason for the sharp difference in treatment between identified and unidentified vehicle claims is plain. In Mbatha, Harms JA pointed out that ''there are good reasons for having stricter requirements for unidentified vehicle cases'':

7 ''In these cases, the possibility of fraud is greater, it is usually impossible for the fund to find evidence to controvert the claimant's allegations; [and] the later the claim the greater the fund's problems.'' [17] This is not to suggest that fraud does not occur in identified vehicle cases - it does - nor that unidentified vehicle claims are necessarily false: as pointed out in Bezuidenhout, this is obviously not so. Yet the evidentiary considerations mentioned in Mbatha have equal force under the current statutory regime, and they are relevant to understanding the intent of the Act and hence the validity of the contested regulation. Notable here is that s 22(1)(a) places an obligation on the owner and the driver (if the driver is not the owner) to furnish to the fund if reasonably possible within 14 days particulars of an occurrence in which any person other than the driver has been injured or killed: the effect of this requirement is that in identified vehicle cases the fund or its agent has early notice of an impending claim. It underscores the evidentiary difficulties the fund faces in unidentified vehicle cases.' [18] The learned Judge of Appeal elucidated that: '[25] The regulation plainly makes the lodging of the claim within the two-year period a precondition to the existence of the debt under the Act. If the claim is not lodged within the period, there is no ''debt'', and the provisions of the Prescription Act do not come into play. [26] In exercising the power to regulate the fund's liability to unidentified vehicle claimants, the Minister must of course act lawfully, and the regulations issued must survive scrutiny for conformity with the usual requirements of legality and reasonableness (bearing in mind that it is funded by the public from a fuel levy: s 5(1)(a)). As this Court stated in Bezuidenhout 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.... (U)nderlying 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 meaning of delegated legislation and the extent of the power to make it.'' [27] In Bezuidenhout it was also suggested (though it was unnecessary to decide), that the regulation at issue (which required physical contact with the offending vehicle in unidentified vehicle cases) might be unreasonable in the classic sense of not having been authorised by the legislation. This underscores the ample constitutional and common-law safeguards that hem the Minister's power in exercising the authority the statute creates. PATEL J 2005 (6) SA p482 [28] None of these safeguards suggest that the power was exercised improperly here. On the contrary, the imposition of a two-year period for lodging claims in unidentified vehicle cases is in my view an unimpeachable exercise of the Minister's regulatory power. It gives claimants a reasonable time within which to lodge their claims in accordance with the procedures the statute prescribes, while giving the fund the opportunity to undertake investigations necessary to safeguard its resources against fraud.' Is reg 2(3) discriminatory? [19] The plaintiff's special plea alleges that the phrase 'irrespective of any legal disability to which the third party concerned may be subject and notwithstanding anything to the contrary in any law' contained in regs 2(3) and (4) give rise to the interpretation that the running of prescription in respect of claims based on the negligence of an unidentified vehicle is not suspended for as long as the third party is a minor is unconstitutional because it is discriminatory. This bald allegation does not refer to a

8 transgression of any particular provision of the Constitution. However, I can safely surmise that plaintiff's allegation refers to inequality of treatment of the two differently placed claimants. [20] Regulation 2(3) and (4) relates exclusively to the commonly known 'hit-and-run' claims. In terms of s 17(1)(b) third parties obtain a statutory right that is non-existent in the common law but subject to the regulations. The statutory right created within the framework of the regulations is sui generis and cannot be equated to the common-law right of a victim to sue a wrongdoer for damages caused on delict. In view of the sui generis nature of the right to claim, the question is whether the regulation invades a right of a minor or not should be considered by comparing the rights of the minors to claim on the basis of a hit-and-run incident. A comparison of the rights of minors who claim on the basis of a hit-and-run incident to the rights of minors who claim where the wrongdoer is identified amounts to comparison of apples with pears. [21] In terms of the regulations and more specifically reg 2(3) all third parties are equal and obtain exactly the same (limited) rights in terms of s 17(1)(b) of the Act. Therefore there is no introduction of an invasion of any of the minor's rights contained in reg 2(3). If this proposition is tested against the Bill of Rights it does not infringe upon any of the rights in the Bill in that the limited right created by s 17(1)(b) applies equally and affords equal protection and benefit to all third parties. A comparison of the rights of minors who claim on the basis of a hit-and-run claim with the rights of minors who claim on the basis of an identified wrongdoer in order to establish whether a right is being invaded would be inappropriate as such a comparison would have to presuppose that the right created in terms of s 17(1)(b) included the right of minors to be protected against the running of prescription and that reg 2(3) then invaded this right. This is untenable. Accordingly this Court finds that no constitutional right is invaded. Thus, the second question does not arise for consideration. PATEL J 2005 (6) SA p483 [22] Assuming that a fundamental right is invaded by reg 2(3), then the question is whether s 36 of the Constitution nevertheless excuses the invasion. In Mohlomi v Minister of Defence 11 the Constitutional Court made the following obiter remark about prescription periods: '[11] Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interests of justice. They protract the disputes over the rights and obligations sought to be enforced prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can cogently be taken.' [23] The reason for prescribing a different prescriptive period for so-called 'hit-and-run claims', ie the purpose for prescribing such a prescriptive period and the importance of that purpose was alluded to in Mbatha v Multilateral Motor Vehicle Accidents Fund. 12 'Taking into consideration that there are good reasons for having stricter requirements for unidentified vehicle cases, the argument has to fail. In those cases the possibility of fraud is greater; it is usually impossible for the fund to find evidence to controvert the claimant's allegations; the later the claim the greater the fund's problems. In addition, whilst in the

9 identified vehicle case the claim against the agent comes in the stead of the claim against the wrongdoer, the claimant in the present case is given an enforceable right in a case where there otherwise would not have been any (Terblanche v Minister van Vervoer en 'n Ander 1977 (3) SA 462 (T) at 470B - C).' This passage was approved in Bezuidenhout v Road Accident Fund 13 and further: '[12] There is good reason for the provision in s 17(1)(b) making the fund's liability in the case of claims involving unidentified motor vehicles subject to regulations issued in terms of s 26(1). As Harms JA pointed out in the case of Mbatha,... the possibility of fraud is greater in unidentified vehicle cases since it is usually difficult for a fund to find evidence to controvert the claimant's allegations. Regulations of a regulatory or evidentiary kind designed to eliminate fraud and facilitate proof would thus fall within the power to regulate.' [24] This aspect of alleged inequality of claims was more recently considered by the Supreme Court of Appeal in Road Accident Fund v Makwetlane 14 where Marais JA for the majority said: '[40] 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. PATEL J 2005 (6) SA p484 [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(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

10 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.' [25] The importance of the limitation of a prescriptive period is to enable a defendant to commence with investigations regarding an incident and finding evidence about that incident. This was accepted in principle in Hartman v Minister van Polisie. 15 Therefore, the prescribed period of two years in reg 2(3) is reasonable and justifiable and the desired ends could not reasonably be achieved through other less damaging means. Conclusion [26] This Court finds that reg 2(3) is neither ultra vires nor discriminatory and concomitantly unconstitutional. To that extent the defendant's 2005 (6) SA p485 special plea is upheld but that does not put an end to this matter. However, the question is what is an appropriate relief in the circumstances of this case? [27] It is common cause that the plaintiff submitted a claim on 8 May 2002, that is within three years from the date of the plaintiff's cause of action which arose on 2 June However, the defendant in its plea averred that a valid claim should have been lodged by the plaintiff against the defendant on or before 1 June In the circumstances, the plaintiff did not submit a claim as required by s 24(1) and accordingly no reliance can be placed on s 24(5). 16 In the circumstances it is not possible to sustain the plaintiff's claim against the defendant. Order [28] In the result, the following order is made: (a) The defendant's special plea is upheld. (b) The plaintiff is ordered to pay the costs of the hearing on the special plea. Plaintiff's Attorneys: Shabangu & Beauchamp. Respondent's Attorneys: Gildenhuys Van der Merwe Inc. 1 Hlongwane v Multilaterale Motorvoertuigongelukkefonds 2000 (1) SA 570 (T); Mbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA) at 718F. 2 3 reads: Moloi and Others v Road Accident Fund 2001 (3) SA 546 (SCA). Regulation 3(2) promulgated in terms of the Multilateral Motor Vehicle Accidents Fund Act of 1989 'The liability of the MMF in respect of claims which arise in terms of this reg will be subject to the following further conditions: (a) (i) A claim for compensation of loss or damages suffered by the claimant shall be delivered to the MMF within two years from the date upon which the claim arose mutatis mutandis in accordance with the provisions of article 62 of the Agreement. (ii) The provisions of subpara (i) shall also apply to all third parties and claimants, irrespective of whether they are subject to any legal disability (5) SA 362 (SCA).

11 5 6 See SA Eagle Insurance Co Ltd v Pretorius 1998 (2) SA 656 (A) ([1998] 1 All SA 131). Road Accident Fund v Makwetlane 2005 (4) SA 51 (SCA) para [26] at 61A - B. 7 Mbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA) ([1997] 2 All SA 483) at 718G/H - I/J (SA); Bezuidenhout v Road Accident Fund 2003 (6) SA 61 (SCA) at 65J - 66B Id at 718I. Road Accident Fund v Scholtz 2003 (5) SA 362 (SCA) at 365C - F (2) SA 512 (SCA) ([2005] 2 All SA 460) (1) SA 124 (CC) (1996 (12) BCLR 1559) at 1295G - H (SA) (3) SA 713 (SCA) ([1997] 2 All SA 483) at 718H (SA) (6) SA 61 (SCA) at 651I/J (4) SA 51 (SCA) (2) SA 149 (O) at 487F - 498A. 16 Compare Road Accident Fund v Thugwana 2004 (3) SA 169 (SCA) at para [17]; Road Accident Fund v Makwetlane 2005 (4) SA 51 (SCA) at para [47]. ROAD ACCIDENT FUND v SCHOLTZ 2003 (5) SA 362 (SCA) Citation Case No 111/2002 Court Judge 2003 (5) SA 362 (SCA) Supreme Court of Appeal Heard May 20, 2003 Judgment June 3, 2003 Counsel Annotations Streicher JA, Navsa JA and Jones AJA J F Grobler for the appellant. F Bezuidenhout for the respondent. Link to Case Annotations 2003 (5) SA p362 Flynote : Sleutelwoorde Motor vehicle accidents - Compensation - Claim for in terms of Motor Vehicle Accidents Fund Act 93 of Prescription - Minority of claimant - Interpretation of arts 55, 56 and 57 of Agreement Establishing a Multilateral Motor Vehicle Accidents Fund in Schedule to Act - Five-year prescription period in art 57 of Agreement not running against minor, provided that claim lodged under art 62.

12 Headnote : Kopnota In terms of art 55 of the Agreement Establishing a Motor Vehicle Accidents Fund in the Schedule to the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989, the right to claim compensation under chap XII from the MMF in respect of claims arising from the driving of a motor vehicle where the identity of the owner or driver thereof has been established, prescribes within three years of the date on which the claim arose, subject to the provisions of arts 56 and 57. In terms of art 56(a), prescription of a claim for compensation referred to in art 56 shall not run against a minor. Article 57 provides that '(n)otwithstanding the provisions of art 55, no claim which has been lodged under art 62 shall prescribe before the expiry of a period of five years from the date on which the claim arose'. In terms of art 56, the running of both the prescriptive period of three years and the period of five years provided for in arts 55 and 57 respectively in respect of a claim referred to in art 55 are suspended during the minority of the claimant, provided, in the case of art 57, that the claim is a claim that has been lodged under art 62. (Paragraph [19] at 366A/B - B/C.) The decision in the Transvaal Provincial Division in Scholtz v Road Accident Fund confirmed. Cases Considered Annotations Statutes Considered Statutes The Motor Vehicle Accidents Fund Act 93 of 1989, Schedule arts 55, 56, 57, 62: see Juta's Statutes of South Africa 1996 vol 4 at Case Information Appeal from a decision in the Transvaal Provincial Division (Swart J). The facts appear from the judgment of Navsa J. J F Grobler for the appellant. F Bezuidenhout for the respondent. In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 839A Swanepoel v Johannesburg City Council; President Insurance Co Ltd v Kruger 1994 (3) SA 789 (A) at 793H. Cur adv vult. Postea (June 3). Judgment 2003 (5) SA p363

13 Navsa JA: [1] The appellant ('the Fund' is a statutory insurer established in terms of s 2 of the Road Accident Fund Act 56 of 1996 and is the successor to the Multilateral Motor Vehicle Accidents Fund, which was established in terms of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 (the Act). [2] The respondent was allegedly injured in a motor vehicle collision where the identity of the driver who allegedly caused the collision was established. The respondent instituted a claim for compensation in the Transvaal Provincial Division of the High Court against the Fund in terms of the Act, which at the time of the collision was the applicable legislation. At the commencement of proceedings in that court the parties agreed that the issue of prescription raised in the Fund's special plea should be separated from the merits and quantum and should be heard first, against the backdrop of a stated case. [3] Swart J, who heard the matter, decided the issue of prescription against the Fund, dismissing the special plea with costs. The present appeal with the leave of this Court is against that decision. [4] The stated case as recorded by the Court below is set out hereunder: '1. The collision occurred on 3 June The plaintiff was born on 24 March The plaintiff's claim was to be adjudicated on in accordance with the provisions of the Multilateral Motor Vehicle Accident Fund Act 93 of The plaintiff's claim was timeously lodged with the defendant on 29 February The summons was served on the defendant on 20 July It is the plaintiff's contention that the summons was served timeously. 7. The defendant contends that the summons was served at the time when the plaintiff's claim had already become prescribed.' [5] The question in this appeal is which of the two contentions set out in paras 6 and 7 of the stated case is correct. Chapter XVIII of the Agreement which has the force of law in terms of the Act is entitled 'Prescription of claim' and contains the applicable provisions, the interpretation of which provides the answer. The three applicable articles are set out in the following three paragraphs. [6] Article 55 provides: 'Notwithstanding the provisions of any other law relating to prescription, but subject to the provisions of arts 56 and 57, the right to claim compensation under chap XII from the MMF or an appointed agent in respect of claims arising from the driving of a motor vehicle in the case where the identity of either the owner or driver thereof has been established, shall become prescribed upon the expiry of a period of three years from the date upon which the claim arose.' [7] Article 56 reads as follows: 'Prescription of a claim for compensation referred to in art 55 shall not run against - (a) (b) a minor; any person detained as a patient in terms of the provisions of mental health legislation

14 applicable within the area of jurisdiction of a Member; or 2003 (5) SA p364 NAVSA JA (c) a person under curatorship.' [8] Article 57 provides: 'Notwithstanding the provisions of art 55, no claim which has been lodged under art 62 shall prescribe before the expiry of a period of five years from the date on which the claim arose.' [9] As can be seen from the stated case the respondent was a minor at the time of the collision. It was correctly accepted by the Fund that the three-year prescription period set out in art 55 would in terms of art 56(a) only start running from the time that she became a major. The respondent's claim was lodged with the Fund on 29 February 2000 in terms of art 62 of the Act by the completion of the prescribed forms and the submission of the necessary information. In terms of art 55 read with art 56 the claim was therefore lodged within a three-year period after the plaintiff became a major. [10] The summons as can be seen from the stated case was issued on 20 July 2000, more than five years after the collision but less than five years from the time the respondent attained the age of majority. It was contended by the respondent that, as was the case with the three-year period referred to in art 55, the five-year period referred to in art 57 only starts running after a minor becomes a major and that consequently the summons was issued timeously. [11] The Fund contended that in terms of art 57 the five-year prescription period starts running from the time of the event which gave rise to the claim, namely the collision, and, unlike the three-year prescription period in art 55, prescription in respect of the former is not suspended in the case of a minor, and consequently the plaintiff's claim had become prescribed. [12] The following are the submissions on behalf of the Fund in support of the aforesaid contention: (i) (ii) (iii) Article 57 has not been made subject to art 56 with the result that the suspension of prescription that operates in favour of minors and others with legal disabilities provided for in art 56 does not extend to art 57. Article 57 does not itself provide for the prescription of a claim and is therefore not qualified by the provisions of art 56. Article 56 expressly states that the prescriptive period set out in art 55 does not run against minors and others with legal disabilities whilst there is no corresponding provision in respect of art 57. I shall deal with each of these submissions in turn. [13] It is true that art 57 does not in terms state that it is subject to art 56. However, art 55, including the prescriptive period referred to therein, has been made subject to arts 56 and 57. It follows that art 55 is qualified by what is set out in those two articles. Its provisions must be read subject to and in conjunction with the provisions of arts 56 and 57. [14] There is no merit in the appellant's submission that art 57 does not contain a

15 prescriptive period. When arts 55, 56 and 57 are read together 2003 (5) SA p365 NAVSA JA it is clear that the prescriptive period in respect of claims referred to in art 55 is three years, but in the event of such a claim having been lodged under art 62, before having become prescribed, the prescriptive period is five years, subject, however, to the provisions of art 56. [15] The opening words of art 56 read: 'Prescription of a claim for compensation referred to in art 55 shall not run against...'. The appellant submitted that the words 'referred to in art 55' qualify the word 'prescription'. For that reason, so the submission went, art 56 suspends the prescription period referred to in art 55 and not the prescription period referred to in art 57. I do not agree. In my view, the words 'referred to in art 55' qualify the words 'a claim for compensation' and not the word 'prescription'. [16] Before their amendment in 1993 by Proc 62 of 16 July 1993, arts 55 and 56 read as follows (art 57 remained as it was): '55. Notwithstanding the provisions of any other law relating to prescription, but subject to the provisions of arts 56 and 57, the right to claim compensation under chap XII from an appointed agent in respect of claims referred to in art 13(b) shall become prescribed upon the expiry of a period of three years from the date upon which the claim arose. 56. Prescription of a claim for compensation under art 13(b) and chap XII shall not run against: (a) (b) (c) a minor; any person detained as a patient in terms of the provisions of mental health legislation applicable within the area of jurisdiction of a Member; or a person under curatorship.' (Emphasis added.) A 'claim for compensation under art 13(b) and chap XII' is a claim 'contemplated in art 40 of the Agreement, arising from the driving of a motor vehicle in the case where the identity of either the owner or driver thereof has been established'. [17] Reading art 57 with art 56 prior to its amendment there can be no doubt that prescription in terms of art 57 did not run against a minor whose claim for compensation was a claim under art 13(b) and had been lodged under art 62. Article 57 contains a prescriptive provision and art 56 specifically states that prescription of such a claim shall not run against a minor. [18] In the amended art 55 the words 'the right to claim compensation under chap XII from an appointed agent in respect of claims referred to in art 13(b)' were replaced with the words 'the right to claim compensation under chap XII from the MMF or an appointed agent in respect of claims arising from the driving of a motor vehicle in the case where the identity of either the owner or driver thereof has been established'. This amendment necessitated an amendment of the description of the relevant claim in art 56. In terms of the resultant amendment the words 'a claim for compensation under art 13(b) and chap XII' were replaced with the words 'a claim for compensation referred to in art 55'. Instead of unnecessarily repeating the long description of the relevant claim the amended art 56 simply describes the relevant claim by reference to the description in art 55. If the intention was that the words 'referred to in

16 2003 (5) SA p366 NAVSA JA art 55' should qualify the word 'prescription' that intention would, in the light of prior wording of the articles have been made clear by simply wording the article: 'Prescription referred to in art 55 shall not run....' [19] It follows that in terms of art 56 the running of both the prescriptive period of three years and the period of five years provided for in arts 55 and 57 respectively in respect of a claim referred to in art 55 are suspended during the minority of the claimant - provided, in the case of art 57, that the claim is a claim that has been lodged under art 62. [20] In support of its submissions the Fund relied on an unreported judgment of Stegmann J in the Johannesburg High Court in Toerien and Others v Padongelukkefonds (case No 28030/96 - WLD). In that case the learned Judge was dealing with the unusual situation of plaintiffs who sought an amendment of the pleadings after he had made a ruling on the merits of their claim. Stegmann J was concerned with the question whether just cause was shown for the amendments and found against the plaintiffs. In his judgment he dealt briefly with arts 55, 56 and 57 and concluded that the five-year period set out in art 57 runs against a minor. Stegmann J set out the provisions of the three articles in question in their entirety but supplied no reasons for this conclusion. Counsel for the plaintiffs in the case before Stegmann J appears to have made no submissions to the contrary. If they were made the learned Judge did not record them. For the reasons set out earlier the conclusion reached by Stegmann J about the meaning and effect of the three articles in question is clearly wrong. [21] For the reasons stated earlier the appeal must fail. The following order is made: 1. The appeal is dismissed with costs. Streicher JA and Jones AJA concurred. Appellant's Attorneys: Shabangu & Beauchamp, Pretoria; M B Molemela, Nomjana, Mapitse, Bloemfontein. Respondent's Attorneys: E Brink Inc, Pretoria; Wessels & Smith, Bloemfontein. MOLOI AND OTHERS v ROAD ACCIDENT FUND 2001 (3) SA 546 (SCA) Citation Case No 413/98 Court Judge 2001 (3) SA 546 (SCA) Supreme Court of Appeal 2001 (3) SA p546 Smalberger JA, Vivier JA, Howie JA, Streicher JA and Farlam AJA Heard September 12, 2000 Judgment September 29, 2000 Counsel Annotations A P Rubens SC (with I Smith) for the appellants. J J Wessels SC (with P H J van Vuuren) for the respondent. Link to Case Annotations

17 Flynote : Sleutelwoorde Motor vehicle accidents - Compensation - Claim for in terms of Multilateral Motor Vehicle Accidents Fund Act 93 of Prescription - Whether claim prescribing in terms of reg 3(2)(a) of regulations made in terms of s 6 of Act upon expiry of two-year period after claim arising in case where motor vehicle concerned unidentified and no claim for compensation for loss or damage suffered delivered to MMF within such period - Mothers and natural guardians of three minors instituting action for damages sustained by minors in collision with unidentified vehicle negligently driven by unknown person - Fund raising special plea of prescription - Counter argument relying on provisions of ss 13 and 16 of Prescription Act 68 of Reasonably plain that provisions of chap III of Prescription Act intended to apply to all debts save where ousted by provisions of inconsistent Act of Parliament and then only to extent of inconsistency - Inconsistent provisions to be included in Act of Parliament and which would oust some or all of provisions of chap III were provisions which (a) prescribed specified period within which claim to be made; (b) prescribed specified period within which action to be instituted in respect of debt; or (c) imposed conditions on institution of action for recovery of debt - Regulation 3(2)(a) falling under (c) as it purported to impose conditions on institution of action - Following from plain terms of s 16 that, unless such provision had status of Act of Parliament, it was invalid - No substantive elevation of regulations to status of Act of Parliament - Provisions of chap III of Prescription Act not ousted in case of minor's claim where such claim arising out of driving of motor vehicle of which identity of neither owner nor driver ascertainable - Special plea dismissed. Statute - Subordinate legislation - Validity - Regulation 3(2)(a) of regulations made in terms of s 6 of Multilateral Motor Vehicle Accidents Fund Act 93 of Regulation prescribing that expiry of two-year period after claim arising in case where motor vehicle concerned unidentified and no claim for compensation for loss or damage suffered delivered to MMF within such period - Mothers and natural guardians of three minors instituting action for damages sustained by minors in collision with unidentified vehicle negligently driven by unknown person - Fund raising special plea of prescription - Counter argument relying on provisions of ss 13 and 16 of Prescription Act 68 of Reasonably plain that provisions of chap III of Prescription Act intended to apply to all debts save where ousted by provisions of inconsistent Act of Parliament and then only to extent of inconsistency - Inconsistent provisions to be included in Act of Parliament and which would oust some or all of provisions of chap III were provisions which (a) prescribed specified period within which claim to be made; (b) prescribed specified period within which action to be instituted in respect of debt; or (c) imposed conditions on institution of action for recovery of debt - Regulation 3(2)(a) falling under (c) as it purported to impose conditions on institution of action - Following from plain terms of s 16 that, unless such provision had status of Act of Parliament, it was invalid - No substantive elevation of regulations to status of Act of Parliament - Provisions of chap III of Prescription Act not ousted in case of minor's claim where such claim arising out of driving of motor vehicle of which identity of neither owner nor driver ascertainable. Headnote : Kopnota The three appellants had instituted action in a Local Division against the Road Accident Fund in their capacities as mothers and natural guardians of three minor children allegedly injured in a collision with an unidentified motor vehicle negligently driven by an unknown person. The question for decision, raised in a special plea by the respondent, was whether a minor's claim arising under art 40 of the Agreement Establishing a Multilateral Motor Vehicle Accidents Fund (the agreement) as set out in the Schedule to the Multilateral Motor Vehicle Accidents Fund Act 93 of 1983 (the Act) prescribed upon the expiry of a two-year period after the claim arose in a case where the motor vehicle concerned was unidentified and no claim for compensation for loss or damage suffered by the minor was delivered to the Multilateral Motor Vehicle Accidents Fund (MMF) within