IN THE HIGH COURT OF SWAZILAND JUDGMENT

IN THE HIGH COURT OF SWAZILAND JUDGMENT In the matter between: Case No. 1272/2015 MFANZILE VUSI HLOPHE Plaintiff And THE MINISTRY OF HEALTH MATHOBELA SIPHESIHLE XOLILE THE ATTORNEY GENERAL 1 st Defendant 2 nd Defendant 3 rd Defendant Neutral citation: Mfanzile Vusi Hlophe and The Ministry of Health & 2 Others (1272/2015) [2015] SZHC 06 (18 February 2016) Coram: T. DLAMINI J. Heard: 30 October 2015 Delivered: 18 February 2016

Summary: Civil Procedure Claim for damages following an injury sustained from a motor vehicle accident Defendants alleged that the pleadings do not disclose a cause of action and they filed an exception Defendants argued that the claim ought to be filed with the Motor Vehicle Accidents Fund Held: The Motor Vehicle Accidents Fund is liable to pay damages in respect of bodily injuries sustained from all motor vehicle accidents Plaintiff pre-maturely filed the lawsuit for compensation against the motor vehicle owner and or driver An exception is not competent in the circumstances of this case Exception dismissed with costs. JUDGMENT [1] This is an exception taken by the Defendants on the Plaintiff s claim on the ground that the pleadings in the summons do not disclose a cause of action. In terms of Rule 23 (1) of the High Court rules, an exception can be taken where a pleading is vague and embarrassing or it lacks averments necessary to sustain a cause of action (SAYSONS (PTY) LTD v ATOMIC CAFÉ (PTY) LTD 1982 1986 SLR 167) 2

[2] The Plaintiff issued summons against the Defendants claiming damages in the amount of Six Hundred and Fifty Thousand Emalangeni (E 650,000) following an injury sustained by the Plaintiff in a motor vehicle accident. The Plaintiff alleged that the driver of the motor vehicle who was acting within the course and scope of his employment with the 1 st Defendant drove negligently and sideswiped the Plaintiff s motor vehicle resulting in an injury caused to Plaintiff in his left finger. The Plaintiff also alleged that as a result of the injury to the left finger a wire was fixed to it. It further alleged that the finger was permanently damaged as it cannot be straightened but is always bent and the Plaintiff feels severe pain when it is cold due to the wire fixed to the finger. [3] The Defendants took an exception to this claim and submitted that claims for damages arising from motor vehicle accidents are to be submitted to the Motor Vehicle Accidents Fund (MVA Fund). They argued that payment of all damages in respect of injuries sustained in a motor vehicle accident is a liability and responsibility of the MVA Fund. The Defendants therefore submitted that the Plaintiff s cause of action is not cognizable in law and, as a result, the particulars of claim do not disclose a cause of action. 3

[4] Section 3 of the Motor Vehicle Accidents Act No.13 of 1991 (hereinafter referred to as the Act ) creates the Motor Vehicle Accidents Fund (MVA Fund) whose mandate and liability is to compensate injured persons, or in the event of death, any dependent of the deceased, for any loss or damage which the injured person has suffered as a result of any bodily injury caused by a motor vehicle accident (section 10 (1) of the Act). [5] In terms of section 13 of the Act, claims for compensation in respect of any loss or damage as a result of any bodily injury are not to be claimed from the owner of the motor vehicle or from the person who drove the motor vehicle unless the Fund is unable or refuses to pay the compensation. I wish to also quote what Levinsohn JA stated about this section. The above section highlights the important feature of the legislation namely, that The MVA Fund is a surrogate litigant. It stands in the place of a normal common law defendant in a delictual case. (See: MOTOR VEHICLE ACCIDENT FUND v MHAWU GWEBU, SUPREME COURT CASE NO.29/2014, paragraph 16). 4

[6] For the above mentioned reason, I agree with the Defendant s submission that Plaintiff s claim should be made to the Motor Vehicle Accidents Fund instead of the 1 st Defendant who is the owner of the motor vehicle and the 2 nd Defendant who drove the motor vehicle while executing his scope of employment with the 1 st Defendant. I am however, of the considered view that to except to the pleadings is not competent in the circumstances of this case. The pleadings do disclose a cause of action but the claim for compensation is to be directed to the MVA Fund and not the Defendants. [7] I note from the Plaintiff s Heads of Arguments that the Plaintiff does not understand what is meant by third party in section 13 of the Act. For that misunderstanding, the Plaintiff submits in paragraph 8 of its Heads as quoted below: The Plaintiff submits further that Section 13(b) of the Act has no application in this particular case as it covers third parties yet in casu Plaintiff is personally aggrieved, he is not a third party [8] It clearly appears that the Plaintiff or its attorney does not understand what is meant by third party. A reading of Section 10 of the Act explains who a third 5

party is. In terms of this provision, a third party means any injured person or, in the event of death, any dependent of the deceased or where reasonable funeral expenses only is payable, the relative of the deceased. In the words of Levinsohn JA in MOTOR VEHICLE ACCIDENTS FUND v MHAWU GWEBU (supra), at paragraph 16, Section 10(1) provides that the MVA Fund be utilized for the purpose of compensating an injured person (referred to as the third party ) for loss and damage suffered by such person which arises from the driving of a motor vehicle. (own emphasis). [9] A publication of the Motor Vehicle Accidents Fund available in the Fund s web-page (website) categorize the MVA Fund as the First Party, the driver or owner of the motor vehicle as the Second Party, and the road victim (injured person) as the Third Party. [10] For the purpose of compensating victims of road accidents, the Second Party pays a premium through a fuel levy to the First Party for the benefit of the Third Party who is a victim of the wrongful conduct of the driver or owner of a motor vehicle. The MVA Fund therefore, indemnifies the Second Party against the 6

claims of the Second Party s victims. The Plaintiff is therefore the Third Party and the Second Party, being the Defendants herein, is indemnified by the MVA Fund (the First Party) against claims of the Third Party. The Plaintiff, properly speaking, is to lodge its claim for damages with the MVA Fund in terms of Section 13 of the Act. [11] For the aforementioned reasons, the Plaintiff has prematurely filed its claim for damages against the Defendants when it ought to have done so only when the MVA Fund is unable or refuses to pay the compensation (See: Section 13 of the Act). The Pleadings do disclose a cause of action but the Plaintiff prematurely instituted proceedings against the Defendants before lodging its claim for damages with the MVA Fund that indemnifies motor vehicle owners and drivers against claims for injuries sustained in motor vehicle accidents. [12] In the result I find that in terms of Rule 23 (1) an exception is not competent in the circumstances. The Defendants ought to have raised this issue by a point in limine. I therefore order as follows: 7

(a) The Defendants exception is dismissed with costs. (b) The Defendant is to file its plea within the time period provided for in the Rules of this Court. T. DLAMINI JUDGE OF THE HIGH COURT For Plaintiff: L. Dlamini For Defendant: C. Ngwenya 8