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MAHAMBO v ROAD ACCIDENT FUND 2005 (6) SA 475 (T)

2005 (6) SA p475

Citation 2005 (6) SA 475 (T)

Case No 25080/02

Court Transvaal Provincial Division

Judge Patel J

Heard July 26, 2005

Judgment July 26, 2005

Counsel L F Bezuidenhout for the plaintiff.J F Grobler for the defendant.

Annotations Link to Case Annotations

Flynote : Sleutelwoorde

Motor vehicle accidents - Compensation - Claim for in terms of Road Accident Fund Act 56 of1996 - Unidentified owner or driver - Provision in reg 2(3) issued in terms of s 26 of Act thatclaims for compensation involving injury caused by unidentified vehicles to be lodged withintwo years from date upon which claim arose - Regulation not unfairly discriminating againstminors.

Headnote : Kopnota

The plaintiff, in her capacity as the sister of a minor child, instituted an action againstthe defendant for the child's loss of support arising from a collision in which the child'smother 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 theexpiry of the two-year period as prescribed by reg 2(3) of the Regulations promulgatedin terms of the Road Accident Fund Act 56 of 1996. On behalf of the plaintiff it wascontended that reg 2(3), which dealt exclusively with hit-and-run accidents, wasunconstitutional because it discriminated against a minor who had a claim against thefund 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 partieswere 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) didnot therefore introduce an invasion of any of the minor's constitutional rights. If thisprovision was tested against the Bill of Rights it appeared that it did not infringe on anyof those rights since the limited right created by s 17(1)(b) applied equally and affordedequal protection and benefit to all third parties. A comparison of the rights of minorswho claimed on the basis of a hit-and-run claim with the rights of minors who claimed onthe basis of an identified wrongdoer in order to establish whether a right was beinginvaded would be inappropriate as such a comparison would have to presuppose that theright created in terms of s 17(1)(b) included the rights of minors to be protected againstthe running of prescription and that reg 2(3) then invaded this right. This was untenableand no constitutional rights were invaded. Accordingly the defendant's special plea hadto be upheld. (Paragraphs [21] and [26] at 482G - J and 484I/J - 485A.)


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 andAnother 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 AllSA 483): referred to

Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) (1996 (12) BCLR 1559): applied

2005 (6) SA p476

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

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 Africa2004/5 vol 4 at 2-173.

Regulations

Regulation 2(3) of the Regulations made in terms of s 26 of the Road Accident Fund Act56 of 1996: see Government Gazette 17939 of 25 April 1997.

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,


Sibongile Lynette Mahambo, instituted an action against the defendant, the RoadAccident Fund (the fund) for loss of support arising from a collision on 2 June 1999. Themother of the plaintiff and the minor (the deceased) was a pedestrian along theGarsfontein Road when an unidentified motor vehicle collided with her. The deceasedwas fatally injured.

[2] The defendant filed a plea. Except for admitting that it is liable to handle the claim, itpleaded that the deceased was not involved in a collision either as alleged or at all. Inessence, 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 1999.

2. In terms of reg 2(3) of the Regulations promulgated in terms of s 26 of the RoadAccident Fund Act, 1996 (the Act), the plaintiff's claim against the defendant had to beproperly lodged with the defendant before the expiry of two years from the date onwhich the cause of action arose, irrespective of any legal disability to which the thirdparty concerned may be subject.

3. A valid claim should have been lodged with the defendant before or on 1 June 2001.

4. The plaintiff purported to lodge a claim against the defendant on 8 May 2002.

2005 (6) SA p477

PATEL J

5. Consequently, no valid claim against the defendant was lodged before the expiry of thetwo-year period as prescribed by reg 2(3) of the regulations promulgated in terms of theAct.'

[4] In response to the defendant's special plea, the plaintiff replicated and pleaded asfollows:

'2.2.1 The provisions of reg 2(3) of the regulations promulgated in terms of s 26 of the RoadAccident Fund Act, 1996, is ultra vires.

2.2.2 The prescription period within which the plaintiff's claim has to be lodged with thedefendant is governed by the provisions of ss 13 and 16 of the Prescription Act 68 of1969.

2.2.3 The provisions of reg 2(3) of the regulations promulgated in terms of s 26 of the RoadAccident Act, 1996, which are in conflict thereof, are unenforceable.

2.2.4 Regulation 2(3) of the regulations promulgated in terms of s 26 of the Road AccidentFund Act, 1996, is in any event unconstitutional, as it discriminates against minors whohave 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 2002.

[6] The parties agreed that the issue raised by the defendant's special plea should bedealt 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 reg2(3), promulgated in terms of s 26 of the Road Accident Fund Act 56 of 1996, is not ultra


vires. 1 However, it is unconstitutional because it discriminates against a minor who hasa claim against the fund when the claim arises from a collision where the identity ofneither 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 69of 1969 applied to the regulations promulgated in terms of the provisions of s 6 of theMultilateral 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 samereasons, the provisions of reg 2(3) in terms of the two-year period is also unenforceable.

2005 (6) SA p478

PATEL J

[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 acollision is known, prescription only starts to run from the date on which the minorattains majority. Therefore, in the light of that decision, the provisions of reg 2(3) arediscriminatory and unconstitutional because only a two-year period is afforded theminor, and the minor is not offered the same protection as minors in general and minorswhere the identity of the driver or owner of the vehicle is known. Thus, it was submittedthat the Road Accident Fund Act like its predecessor the Multilateral Motor VehicleAccidents 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. Itdistinguishes between cases where the owner or driver is identified and those whereneither is identified. Section 17(1) provides that the fund shall be obliged to compensateany person for specified loss or damage

'(a) subject to this Act, in the case of a claim for compensation under this section arisingfrom the driving of a motor vehicle where the identity of the owner or driver thereof hasbeen established;

(b) subject to any regulation made under s 26, in the case of a claim for compensation underthis section arising from the driving of a motor vehicle where the identity of neither theowner 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 prescribedor which may be necessary or expedient to prescribe in order to achieve or promote the objectof this Act'.

[12] Regulation 2(3) was issued under s 26. It provides that an unidentified vehicleclaim

'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 theclaim arose, irrespective of any legal disability to which the third party concerned may besubject and notwithstanding anything to the contrary in any law'.

2005 (6) SA p479


PATEL J

[13] Regulation 2(4) provides that once a claim has been sent or delivered to the fundwithin 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 claimarose, irrespective of any legal disability to which the third party concerned may be subject andnotwithstanding anything to the contrary in any law, unless a summons to commence legalproceedings 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 goodreasons 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' thethird party's claim is against the fund instead of against the wrongdoer, whereas in thecase of an 'unidentified claim' the third party is given an enforceable right in a casewhere 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 interms 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 tomake regulations to prescribe the fund's obligation within the framework of the object ofthe Act. Regulation 2(3) is not ultra vires because it deals with the procedural aspectsrelating to the lodgement and perusal of claims and not with the determination ofliability contrary to the object of the Act. Regulation 2(3) cannot be held to be ultra viresbecause the regulation does not exclude or limit the liability of the fund further than theliability provided for in the framework of the statutory provisions. It merely prescribes atime 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 lossor damage arising from the driving of a motor vehicle in the case where the identity of thedriver 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 anagent shall be obliged to compensate any person subject to any regulation made, clearlyindicates that the Minister is indeed empowered, by virtue of delegated authority, to

determine the prescription period in the regulations. 9 The prescription periods for allthird

2005 (6) SA p480

PATEL J

parties who claim on the basis of the negligence of an unidentified vehicle are the sameand are prescribed in regs (3) and (4) of the regulations promulgated in terms of s 26 ofthe Act, 1996. It is specifically legislated that the aforementioned prescription periodapplies 'irrespective of any legal disability . . . and notwithstanding anything to thecontrary 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 &


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. Thisprovides that when a third party is entitled to claim compensation, he or she may not claimfrom the owner or driver or the driver's employer, unless the fund is unable to pay. This hassignificant implications. In a case where the claimant can trace the vehicle or the driver, theprovision means that the claimant loses a valid claim against an identifiable wrongdoer. Ineffect, the Act substitutes the fund as surrogate for a known wrongdoer, and replaces anenforceable 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 identifiablewrongdoer to sue, and the injured party is remediless. The legislation instead creates a claimfor compensation where otherwise there would have been none. The fund is not substituted fora 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 vehicleand unidentified vehicle cases is fundamental. This Court's decisions have repeatedlyunderscored its implications, most recently in Bezuidenhout v Road Accident Fund. Thelegislation specifies that loss or damage involving identified vehicles must be compensated onterms expressly set out in the statute itself (''subject to this Act''). By contrast, withunidentified vehicle claims, the Minister is given power to subject payment of compensation toa regulatory scheme, and thus to determine the conditions subject to which compensation maybe granted (''subject to any regulation made under s 26'').

[13] In accordance with this distinction, s 23, which deals with prescription of claims, providesthat the right to claim compensation in identified vehicle cases prescribes after three years (s23(1)). This matches the ordinary period of prescription for debts under the Prescription Act (s11(d)). It reflects the fact that the claimant in an identified vehicle case forfeits a claim againsta known wrongdoer and is obliged to seek recourse from the fund instead. The three-yearprescription period against the known perpetrator is replaced with an equivalent period againstthe fund.

[14] In consonance with this, s 23(2) provides that in identified vehicle cases prescription shallnot run against a minor, a person detained as a patient in terms of any mental healthlegislation or a person under curatorship. Again, this reflects the ordinary regime under thePrescription Act, because the minor (or person under other disability) forfeits a claim against aknown 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

2005 (6) SA p481

PATEL J

fund within two years. Once so lodged, claimants have a five-year period from the incidentwithin which to issue summons (regs 2(3) and 2(4)). This regulatory scheme thus differs intwo ways from the periods the statute determines for the prescription of identified vehicleclaims. First, the two-year period for lodging a claim is one year shorter than the prescriptionperiod the statute specifies for identified vehicle claims; and, second, the regulatory schememakes no special allowance for minors. In both cases, however, once a claim is lodged in termsof s 24, there is a five-year period from the date of the accident within which summons mustbe issued (s 23(3) in the case of identified vehicles; reg 2(4) in the case of unidentifiedvehicles).

[16] The reason for the sharp difference in treatment between identified and unidentifiedvehicle claims is plain. In Mbatha, Harms JA pointed out that ''there are good reasons forhaving stricter requirements for unidentified vehicle cases'':


''In these cases, the possibility of fraud is greater, it is usually impossible for the fund tofind evidence to controvert the claimant's allegations; [and] the later the claim thegreater the fund's problems.''

[17] This is not to suggest that fraud does not occur in identified vehicle cases - it does - northat unidentified vehicle claims are necessarily false: as pointed out in Bezuidenhout, this isobviously not so. Yet the evidentiary considerations mentioned in Mbatha have equal forceunder the current statutory regime, and they are relevant to understanding the intent of theAct and hence the validity of the contested regulation. Notable here is that s 22(1)(a) places anobligation on the owner and the driver (if the driver is not the owner) to furnish to the fund ifreasonably possible within 14 days particulars of an occurrence in which any person other thanthe driver has been injured or killed: the effect of this requirement is that in identified vehiclecases the fund or its agent has early notice of an impending claim. It underscores theevidentiary 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 aprecondition to the existence of the debt under the Act. If the claim is not lodged within theperiod, 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, theMinister must of course act lawfully, and the regulations issued must survive scrutiny forconformity with the usual requirements of legality and reasonableness (bearing in mind that itis funded by the public from a fuel levy: s 5(1)(a)). As this Court stated in Bezuidenhout s26(1)

''cannot empower the making of regulations which widen the purpose and object of thepresent Act or which are in conflict therewith. . . . (U)nderlying the concept of delegatedlegislation is the basic principle that the Legislature delegates because it cannot directlyexert its will in every detail. All it can in practice do is to lay down the outline. Thismeans that the intention of the Legislature, as indicated in the enabling Act, must be theprime guide to the meaning of delegated legislation and the extent of the power to makeit.''

[27] In Bezuidenhout it was also suggested (though it was unnecessary to decide), that theregulation at issue (which required physical contact with the offending vehicle in unidentifiedvehicle cases) might be unreasonable in the classic sense of not having been authorised by thelegislation. This underscores the ample constitutional and common-law safeguards that hemthe Minister's power in exercising the authority the statute creates.

2005 (6) SA p482

PATEL J

[28] None of these safeguards suggest that the power was exercised improperly here. On thecontrary, the imposition of a two-year period for lodging claims in unidentified vehicle cases isin my view an unimpeachable exercise of the Minister's regulatory power. It gives claimants areasonable time within which to lodge their claims in accordance with the procedures thestatute prescribes, while giving the fund the opportunity to undertake investigations necessaryto safeguard its resources against fraud.'

Is reg 2(3) discriminatory?

[19] The plaintiff's special plea alleges that the phrase 'irrespective of any legal disabilityto which the third party concerned may be subject and notwithstanding anything to thecontrary in any law' contained in regs 2(3) and (4) give rise to the interpretation thatthe running of prescription in respect of claims based on the negligence of anunidentified vehicle is not suspended for as long as the third party is a minor isunconstitutional because it is discriminatory. This bald allegation does not refer to a


transgression of any particular provision of the Constitution. However, I can safelysurmise that plaintiff's allegation refers to inequality of treatment of the two differentlyplaced 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 inthe common law but subject to the regulations. The statutory right created within theframework of the regulations is sui generis and cannot be equated to the common-lawright of a victim to sue a wrongdoer for damages caused on delict. In view of the suigeneris nature of the right to claim, the question is whether the regulation invades aright of a minor or not should be considered by comparing the rights of the minors toclaim on the basis of a hit-and-run incident. A comparison of the rights of minors whoclaim on the basis of a hit-and-run incident to the rights of minors who claim where thewrongdoer 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 equaland obtain exactly the same (limited) rights in terms of s 17(1)(b) of the Act. Thereforethere 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 therights in the Bill in that the limited right created by s 17(1)(b) applies equally andaffords equal protection and benefit to all third parties. A comparison of the rights ofminors who claim on the basis of a hit-and-run claim with the rights of minors who claimon the basis of an identified wrongdoer in order to establish whether a right is beinginvaded would be inappropriate as such a comparison would have to presuppose that theright created in terms of s 17(1)(b) included the right of minors to be protected againstthe 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 secondquestion does not arise for consideration.

2005 (6) SA p483

PATEL J

[22] Assuming that a fundamental right is invaded by reg 2(3), then the question iswhether s 36 of the Constitution nevertheless excuses the invasion. In Mohlomi v

Minister of Defence 11 the Constitutional Court made the following obiter remark aboutprescription periods:

'[11] Rules that limit the time during which litigation may be launched are common in our legalsystem 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 theuncertainty of all concerned about their affairs. Nor in the end is it always possible toadjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer beavailable to testify. The memories of ones whose testimony can still be obtained may havefaded and become unreliable. Documentary evidence may have disappeared. Such rulesprevent procrastination and those harmful consequences of it. They thus serve a purpose towhich no exception in principle can cogently be taken.'

[23] The reason for prescribing a different prescriptive period for so-called 'hit-and-runclaims', 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 forunidentified vehicle cases, the argument has to fail. In those cases the possibility of fraud isgreater; it is usually impossible for the fund to find evidence to controvert the claimant'sallegations; the later the claim the greater the fund's problems. In addition, whilst in the


identified vehicle case the claim against the agent comes in the stead of the claim against thewrongdoer, the claimant in the present case is given an enforceable right in a case where thereotherwise would not have been any (Terblanche v Minister van Vervoer en 'n Ander 1977 (3) SA462 (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 caseof 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 inunidentified vehicle cases since it is usually difficult for a fund to find evidence to controvert theclaimant's allegations. Regulations of a regulatory or evidentiary kind designed to eliminatefraud 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 forthe majority said:

'[40] Is the victim of a ''hit-and-run'' driver unfairly discriminated against because theregulation imposes a burdensome obligation upon him or her which is not imposed upon thevictim in a case where the driver is identifiable? It is so, of course, that in both situations thereis a victim who has been injured and has suffered loss as a consequence of the negligentdriving of a motor vehicle. They are in the same boat to that extent, but they are verydifferently placed in other vital respects.

2005 (6) SA p484

PATEL J

[41] In the case of the identifiable driver the claimant, but for s 21 of the Road Accident FundAct 56 of 1996, would have been able to institute a claim at common law against the driver. Inlieu of that common-law claim there is a legislatively conferred claim against the fund. Becausethe driver is identified, the fund will, more often than not, have access to his or her version ofwhat happened and may be able to resist successfully an unmeritorious claim. In addition, in acase in which it is held liable, it may, depending on the circumstances, even have a right ofrecourse 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 whomproceedings could actually have been instituted at common law. The existence in theory of sucha remedy will be of cold comfort to the victim. Happily, s 17(b) of the Act, subject toregulations made under s 26 of the Act, provides a remedy against the fund. However, as Ihave already said, the position of the fund in such a situation is invidious. It will have nodriver's version available to it and, if it has to pay the claimant, the right of recourse which s 25of 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 unsoundand 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 remedyagainst 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 noenforceable remedy at common law. Such a victim is really the recipient of what may be calledlegislative social largesse. Had there been any constitutional imperative to bestow that largessethe approach to the questions which this case poses would have had to be very different butthere is none. In short, to the extent that the obligations which the regulation imposes uponthe victim of a ''hit-and-run'' driver are discriminatory, the discrimination is not unfair to sucha victim.

[44] I might add that even if it were so that equality of treatment is required prima facie, it isat least conceivable that there might be evidence at the disposal of the fund which would showthat the difference in treatment of these different kinds of claimant is justifiable under s 36 of


the Constitution. To decide the point against the fund at this belated stage of the litigationwhen 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 tocommence 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 thedesired 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 andconcomitantly 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 questionis 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 iswithin three years from the date of the plaintiff's cause of action which arose on 2 June1999. However, the defendant in its plea averred that a valid claim should have beenlodged by the plaintiff against the defendant on or before 1 June 2001. In thecircumstances, 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 tosustain 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 Vander Merwe Inc.

1

Hlongwane v Multilaterale Motorvoertuigongelukkefonds 2000 (1) SA 570 (T); Mbatha v MultilateralMotor Vehicle Accidents Fund 1997 (3) SA 713 (SCA) at 718F.

2

Moloi and Others v Road Accident Fund 2001 (3) SA 546 (SCA).

3

Regulation 3(2) promulgated in terms of the Multilateral Motor Vehicle Accidents Fund Act of 1989reads:

'The liability of the MMF in respect of claims which arise in terms of this reg will be subject to thefollowing further conditions:

(a) (i) A claim for compensation of loss or damages suffered by the claimant shall bedelivered to the MMF within two years from the date upon which the claim arose mutatis mutandis inaccordance 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.

4

2003 (5) SA 362 (SCA).


5

See SA Eagle Insurance Co Ltd v Pretorius 1998 (2) SA 656 (A) ([1998] 1 All SA 131).

6

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) at718G/H - I/J (SA); Bezuidenhout v Road Accident Fund 2003 (6) SA 61 (SCA) at 65J - 66B.

8

Id at 718I.

9

Road Accident Fund v Scholtz 2003 (5) SA 362 (SCA) at 365C - F.

10

2005 (2) SA 512 (SCA) ([2005] 2 All SA 460).

11

1997 (1) SA 124 (CC) (1996 (12) BCLR 1559) at 1295G - H (SA).

12

1997 (3) SA 713 (SCA) ([1997] 2 All SA 483) at 718H (SA).

13

2003 (6) SA 61 (SCA) at 651I/J.

14

2005 (4) SA 51 (SCA).

15

1981 (2) SA 149 (O) at 487F - 498A.

16

Compare Road Accident Fund v Thugwana 2004 (3) SA 169 (SCA) at para [17]; Road Accident Fundv Makwetlane 2005 (4) SA 51 (SCA) at para [47].

ROAD ACCIDENT FUND v SCHOLTZ 2003 (5) SA 362 (SCA)

2003 (5) SA p362

Citation 2003 (5) SA 362 (SCA)

Case No 111/2002

Court Supreme Court of Appeal

Judge Streicher JA, Navsa JA and Jones AJA

Heard May 20, 2003

Judgment June 3, 2003

Counsel J F Grobler for the appellant.F Bezuidenhout for the respondent.



Motor vehicle accidents - Compensation - Claim for in terms of Motor Vehicle Accidents FundAct 93 of 1989 - Prescription - Minority of claimant - Interpretation of arts 55, 56 and 57 ofAgreement Establishing a Multilateral Motor Vehicle Accidents Fund in Schedule to Act -Five-year prescription period in art 57 of Agreement not running against minor, providedthat claim lodged under art 62.


Headnote : Kopnota

In terms of art 55 of the Agreement Establishing a Motor Vehicle Accidents Fund in theSchedule to the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989, the right toclaim compensation under chap XII from the MMF in respect of claims arising from thedriving of a motor vehicle where the identity of the owner or driver thereof has beenestablished, prescribes within three years of the date on which the claim arose, subjectto the provisions of arts 56 and 57. In terms of art 56(a), prescription of a claim forcompensation 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 62shall prescribe before the expiry of a period of five years from the date on which theclaim arose'.

In terms of art 56, the running of both the prescriptive period of three years and theperiod of five years provided for in arts 55 and 57 respectively in respect of a claimreferred to in art 55 are suspended during the minority of the claimant, provided, in thecase 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 Fundconfirmed.

Cases Considered

Annotations

Statutes Considered

Statutes

The Motor Vehicle Accidents Fund Act 93 of 1989, Schedule arts 55, 56, 57, 62: seeJuta's Statutes of South Africa 1996 vol 4 at 3-202 - 3-203.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Swart J). The facts appearfrom 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 partiesreferred 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).

2003 (5) SA p363

Judgment


Navsa JA:

[1] The appellant ('the Fund' is a statutory insurer established in terms of s 2 of theRoad Accident Fund Act 56 of 1996 and is the successor to the Multilateral Motor VehicleAccidents Fund, which was established in terms of the Multilateral Motor VehicleAccidents Fund Act 93 of 1989 (the Act).

[2] The respondent was allegedly injured in a motor vehicle collision where the identityof the driver who allegedly caused the collision was established. The respondentinstituted a claim for compensation in the Transvaal Provincial Division of the High Courtagainst the Fund in terms of the Act, which at the time of the collision was the applicablelegislation. At the commencement of proceedings in that court the parties agreed thatthe issue of prescription raised in the Fund's special plea should be separated from themerits 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 isagainst that decision.

[4] The stated case as recorded by the Court below is set out hereunder:

'1. The collision occurred on 3 June 1994.

2. The plaintiff was born on 24 March 1976.

3. The plaintiff's claim was to be adjudicated on in accordance with the provisions of theMultilateral Motor Vehicle Accident Fund Act 93 of 1989.

4. The plaintiff's claim was timeously lodged with the defendant on 29 February 2000.

5. The summons was served on the defendant on 20 July 2000.

6. 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'sclaim had already become prescribed.'

[5] The question in this appeal is which of the two contentions set out in paras 6 and 7of the stated case is correct. Chapter XVIII of the Agreement which has the force of lawin terms of the Act is entitled 'Prescription of claim' and contains the applicableprovisions, the interpretation of which provides the answer. The three applicable articlesare set out in the following three paragraphs.

[6] Article 55 provides:

'Notwithstanding the provisions of any other law relating to prescription, but subject to theprovisions of arts 56 and 57, the right to claim compensation under chap XII from the MMF oran appointed agent in respect of claims arising from the driving of a motor vehicle in the casewhere the identity of either the owner or driver thereof has been established, shall becomeprescribed upon the expiry of a period of three years from the date upon which the claimarose.'

[7] Article 56 reads as follows:

'Prescription of a claim for compensation referred to in art 55 shall not run against -

(a) a minor;

(b) 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

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 shallprescribe 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 thecollision. It was correctly accepted by the Fund that the three-year prescription periodset out in art 55 would in terms of art 56(a) only start running from the time that shebecame a major. The respondent's claim was lodged with the Fund on 29 February 2000in terms of art 62 of the Act by the completion of the prescribed forms and thesubmission of the necessary information. In terms of art 55 read with art 56 the claimwas 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 therespondent attained the age of majority. It was contended by the respondent that, aswas the case with the three-year period referred to in art 55, the five-year periodreferred to in art 57 only starts running after a minor becomes a major and thatconsequently the summons was issued timeously.

[11] The Fund contended that in terms of art 57 the five-year prescription period startsrunning 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 theformer is not suspended in the case of a minor, and consequently the plaintiff's claimhad become prescribed.

[12] The following are the submissions on behalf of the Fund in support of the aforesaidcontention:

(i) Article 57 has not been made subject to art 56 with the result that thesuspension of prescription that operates in favour of minors and others withlegal disabilities provided for in art 56 does not extend to art 57.

(ii) Article 57 does not itself provide for the prescription of a claim and is thereforenot qualified by the provisions of art 56.

(iii) Article 56 expressly states that the prescriptive period set out in art 55 does notrun against minors and others with legal disabilities whilst there is nocorresponding 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, art55, including the prescriptive period referred to therein, has been made subject to arts56 and 57. It follows that art 55 is qualified by what is set out in those two articles. Itsprovisions must be read subject to and in conjunction with the provisions of arts 56 and57.

[14] There is no merit in the appellant's submission that art 57 does not contain a


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 threeyears, but in the event of such a claim having been lodged under art 62, before havingbecome prescribed, the prescriptive period is five years, subject, however, to theprovisions of art 56.

[15] The opening words of art 56 read: 'Prescription of a claim for compensation referredto in art 55 shall not run against . . .'. The appellant submitted that the words 'referredto in art 55' qualify the word 'prescription'. For that reason, so the submission went, art56 suspends the prescription period referred to in art 55 and not the prescription periodreferred to in art 57. I do not agree. In my view, the words 'referred to in art 55' qualifythe 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 asfollows (art 57 remained as it was):

'55. Notwithstanding the provisions of any other law relating to prescription, but subject to theprovisions 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 aperiod 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) a minor;

(b) any person detained as a patient in terms of the provisions of mental health legislationapplicable within the area of jurisdiction of a Member; or

(c) 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 inthe 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 thatprescription in terms of art 57 did not run against a minor whose claim forcompensation was a claim under art 13(b) and had been lodged under art 62. Article 57contains a prescriptive provision and art 56 specifically states that prescription of such aclaim shall not run against a minor.

[18] In the amended art 55 the words 'the right to claim compensation under chap XIIfrom an appointed agent in respect of claims referred to in art 13(b)' were replaced withthe words 'the right to claim compensation under chap XII from the MMF or an appointedagent in respect of claims arising from the driving of a motor vehicle in the case wherethe identity of either the owner or driver thereof has been established'. This amendmentnecessitated an amendment of the description of the relevant claim in art 56. In termsof the resultant amendment the words 'a claim for compensation under art 13(b) andchap 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 theamended art 56 simply describes the relevant claim by reference to the description in art55. If the intention was that the words 'referred to in


2003 (5) SA p366

NAVSA JA

art 55' should qualify the word 'prescription' that intention would, in the light of priorwording of the articles have been made clear by simply wording the article: 'Prescriptionreferred to in art 55 shall not run . . . .'

[19] It follows that in terms of art 56 the running of both the prescriptive period of threeyears and the period of five years provided for in arts 55 and 57 respectively in respectof 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 art62.

[20] In support of its submissions the Fund relied on an unreported judgment ofStegmann 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 unusualsituation of plaintiffs who sought an amendment of the pleadings after he had made aruling on the merits of their claim. Stegmann J was concerned with the question whetherjust cause was shown for the amendments and found against the plaintiffs. In hisjudgment he dealt briefly with arts 55, 56 and 57 and concluded that the five-yearperiod set out in art 57 runs against a minor. Stegmann J set out the provisions of thethree 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 nosubmissions 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 meaningand 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)

2001 (3) SA p546

Citation 2001 (3) SA 546 (SCA)

Case No 413/98

Court Supreme Court of Appeal

Judge Smalberger JA, Vivier JA, Howie JA, Streicher JA and Farlam AJA

Heard September 12, 2000

Judgment September 29, 2000

Counsel A P Rubens SC (with I Smith) for the appellants.J J Wessels SC (with P H J van Vuuren) for the respondent.




Motor vehicle accidents - Compensation - Claim for in terms of Multilateral Motor VehicleAccidents Fund Act 93 of 1989 - Prescription - Whether claim prescribing in terms of reg3(2)(a) of regulations made in terms of s 6 of Act upon expiry of two-year period after claimarising in case where motor vehicle concerned unidentified and no claim for compensationfor loss or damage suffered delivered to MMF within such period - Mothers and naturalguardians of three minors instituting action for damages sustained by minors in collisionwith unidentified vehicle negligently driven by unknown person - Fund raising special plea ofprescription - Counter argument relying on provisions of ss 13 and 16 of Prescription Act 68of 1969 - Reasonably plain that provisions of chap III of Prescription Act intended to applyto all debts save where ousted by provisions of inconsistent Act of Parliament and then onlyto extent of inconsistency - Inconsistent provisions to be included in Act of Parliament andwhich would oust some or all of provisions of chap III were provisions which (a) prescribedspecified period within which claim to be made; (b) prescribed specified period within whichaction to be instituted in respect of debt; or (c) imposed conditions on institution of actionfor recovery of debt - Regulation 3(2)(a) falling under (c) as it purported to imposeconditions on institution of action - Following from plain terms of s 16 that, unless suchprovision had status of Act of Parliament, it was invalid - No substantive elevation ofregulations to status of Act of Parliament - Provisions of chap III of Prescription Act notousted in case of minor's claim where such claim arising out of driving of motor vehicle ofwhich identity of neither owner nor driver ascertainable - Special plea dismissed.

Statute - Subordinate legislation - Validity - Regulation 3(2)(a) of regulations made in termsof s 6 of Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 - Regulation prescribingthat expiry of two-year period after claim arising in case where motor vehicle concernedunidentified and no claim for compensation for loss or damage suffered delivered to MMFwithin such period - Mothers and natural guardians of three minors instituting action fordamages sustained by minors in collision with unidentified vehicle negligently driven byunknown person - Fund raising special plea of prescription - Counter argument relying onprovisions of ss 13 and 16 of Prescription Act 68 of 1969 - Reasonably plain that provisionsof chap III of Prescription Act intended to apply to all debts save where ousted by provisionsof inconsistent Act of Parliament and then only to extent of inconsistency - Inconsistentprovisions to be included in Act of Parliament and which would oust some or all of provisionsof chap III were provisions which (a) prescribed specified period within which claim to bemade; (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 fromplain 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 chapIII of Prescription Act not ousted in case of minor's claim where such claim arising out ofdriving 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 AccidentFund in their capacities as mothers and natural guardians of three minor childrenallegedly injured in a collision with an unidentified motor vehicle negligently driven by anunknown 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 aMultilateral Motor Vehicle Accidents Fund (the agreement) as set out in the Schedule tothe Multilateral Motor Vehicle Accidents Fund Act 93 of 1983 (the Act) prescribed uponthe expiry of a two-year period after the claim arose in a case where the motor vehicleconcerned was unidentified and no claim for compensation for loss or damage sufferedby the minor was delivered to the Multilateral Motor Vehicle Accidents Fund (MMF) within


such period.

Regulation 3(2)(a)(i) and (ii), made in terms of s 6(1) of the Act, provided that theliability of the MMF would be subject to certain conditions, viz (i) that a claim forcompensation for loss or damages suffered by the claimant had to be delivered to theMMF within two years from the date upon which the claim arose mutatis mutandis inaccordance with the provisions of art 62 of

2001 (3) SA p547

the agreement; and (ii) that the provisions of (i) shall apply to all third parties andclaimants, irrespective of whether they were subject to any legal disability.

In order to repel the respondent's special plea, the appellants had relied on theprovisions of ss 13 and 16 of the Prescription Act 68 of 1969, which provided, inter alia,that the provisions of chap III of the Prescription Act shall, save insofar as thoseprovisions were inconsistent with the provisions of any Act of Parliament prescribing aspecific time within which a claim was to be made or an action instituted, apply to anydebt arising after the commencement of the Prescription Act. The Court a quo hadupheld the respondent's special plea, holding that the regulations were deemed to bepart of the Act and that the provisions of the Prescription Act had been ousted, anddismissed the appellants' contention that reg 3, insofar as it provided that prescriptionran against minors, was ultra vires.

The respondent submitted, as an alternative argument, that, even if the regulations didnot amount to an Act of Parliament for the purposes of s 16 of the Prescription Act, theappellants' appeal should still fail. This was, so the argument continued, because thecondition contained in reg 3(2)(a)(i) was a condition in the proper sense of the word.The rights conferred on the minors were conditional rights only and no debts, within themeaning of the Prescription Act, had arisen in respect of which prescription could rununtil the condition to which they were subject had been fulfilled. After the expiry of thetwo-year period, no claims for compensation having been delivered to the MMF on behalfof the minors concerned and the condition having thus failed, the conditional rightswhich the minors had against Fund fell away. The respondent contended that the reasonthese rights fell away was not because they had prescribed but because, nounconditional debt having arisen, prescription had never run at all and the conditionalrights expired when the condition upon which they were dependent failed. In an appeal,

Held, that, although s 16 of the Prescription Act was not drafted as clearly as it mighthave been, it was reasonably plain that what was intended was that the provisions ofchap III would apply to all debts save where they were ousted by the provisions of anAct of Parliament which was inconsistent and then only to the extent of theinconsistency. The inconsistent provisions which had to be included in an Act ofParliament and which would oust some or all of the provisions of chap III were provisionswhich (a) prescribed a specified period within which a claim had to be made; (b)prescribed a specified period within which an action had to be instituted in respect of adebt; or (c) imposed conditions on the institution of an action for the recovery of a debt.Regulation 3(2)(a) fell under (c) as it purported to impose conditions on the institution ofan action. It followed from the plain terms of s 16 that, unless such provision had thestatus of an Act of Parliament, it was invalid. (Paragraph [13] at 554B/C - E.)

Held, further, that the provisions of the Prescription Act were not ousted because of thefact that in s 1 of the Act the words 'this Act' were defined so as to include theregulations made under s 6. It was clear from the introductory words to s 1 that thestatutory definition of 'this Act' applied to the interpretation of the Act itself. There was


no substantive elevation of the regulations to the status of an Act of Parliament. Theresult was that the provisions of chap III of the Prescription Act were not ousted in thecase of a minor's claim in terms of the agreement where such claim arose out of thedriving of a motor vehicle of which the identity of neither the owner nor the driver couldbe ascertained. (Paragraphs [14] and [17] at 554E - F/G and 554J - 555A/B.)

Held, further, that, in order for the respondent's alternative contention to succeed, theCourt had to be satisfied as to two things: (1) that the

2001 (3) SA p548

'condition' referred to in reg 3(2)(a)(i) was a suspensive condition, ie an uncertainfuture event pending the happening of which the minors concerned had no enforceablerights against the Fund, and (2) that the Minister had the power under s 6 of the Act toimpose the condition contended for. (Paragraph [20] at 555F - G.)

Held, further, that it was clear that the Minister was not empowered by s 6 of the Act toendeavour to convert the unconditional liability created by art 40 into a conditionalliability. The position was not altered by the fact that s 2(1) of the Act provided that theagreement had the force of law subject to the provisions of the Act including theregulations. The respondent's alternative submission therefore had to be rejected.(Paragraphs [25] and [26] at 556E/F - G.) Appeal allowed.

Cases Considered

Annotations:

Reported cases

Mbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA):distinguished

Padongelukkefonds (voorheen Multilaterale Motorvoertuigongelukkefonds) v Prinsloo1999 (3) SA 569 (SCA): dictum at 574F - 575A applied

Road Accident Fund v Smith NO 1999 (1) SA 92 (SCA): considered.

Statutes Considered

Statutes

The Multilateral Motor Vehicle Accidents Fund Act 93 of 1989, ss 1, 2(1) and 6(1);Schedule, art 40: see Juta's Statutes of South Africa 1995 vol 4 at 3-177, 3-188

The Prescription Act 68 of 1969, ss 13, 16: see Juta's Statutes of South Africa 2000 vol 1at 1-697.

Case Information

Appeal from a decision in the Witwatersrand Local Division (Claassen J). The factsappear from the judgment of Farlam AJA.

A P Rubens SC (with I Smith) for the appellants.

J J Wessels SC (with P H J van Vuuren) for the respondent.

In addition to the authorities referred to in the judgment of the Court, counsel referred


to the following:

Apalamah v Santam Insurance Co Ltd and Another 1975 (2) SA 229 (D) at 232E - G,233C - E

Dadoo Ltd and Another v Krugersdorp Municipal Council 1920 AD 530 at 554 - 5

De Villiers and Another v Barnard and Another 1958 (3) SA 167 (A) at 183G - H

Du Plessis v Gildenhuys NO 1965 (2) SA 478 (C) at 486F - G

Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A)at 344F - G

Kotze NO v Santam Insurance Ltd 1994 (1) SA 237 (C) at 246D - 247G

Moodley and Others v Minister of Education and Culture, House of Delegates, andAnother 1989 (3) SA 221 (A) at 233D - F

Nochomowitz NO v Bellville Liquor Licensing Board and Another 1956 (2) SA 228 (C) at235C - D

President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A) at 777D

SA Mutual Fire & General Insurance Co Ltd v Eyberg 1981 (4) SA 318 (A) at 326F - 328C

2001 (3) SA p549

Santam Versekeringsmaatskappy Bpk v Roux 1978 (2) SA 856 (A) at 863G

Standard General Insurance Co Ltd v Verdun Estates (Pty) Ltd and Another 1990 (2) SA693 (A) at 697C - J

Terblanche v Minister van Vervoer en 'n Ander 1977 (3) SA 462 (T) at 470F, 471F - G

Western Bank v S J J van Vuuren Transport 1980 (2) SA 348 (T) at 351F - H

Steyn Die Uitleg van Wette 5th ed at 4, 118, 199.

Cur adv vult.

Postea (September 29).

Judgment

Farlam AJA:

[1] This is an appeal from a judgment of Claassen J sitting in the Witwatersrand LocalDivision of the High Court, who upheld a special plea by the defendant (respondent) tothe particulars of claim of the plaintiffs (appellants) and dismissed their claims withcosts. In what follows I shall refer to the parties as they were described in the Court aquo.

[2] The question for decision in this case is whether a minor's claim arising under art 40of the Agreement Establishing a Multilateral Motor Vehicle Accidents Fund (which is setout in the Schedule to the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 (asamended)) prescribes on the expiry of a two-year period after the claim arose in a casewhere the motor vehicle concerned was unidentified and no claim for compensation forloss or damage suffered by the minor was delivered to the Multilateral Motor Vehicle


Accidents Fund within such period. (In what follows I shall refer to the Agreement set outin the Schedule to Act 93 of 1989 as 'the Agreement' and to the Multilateral MotorVehicle Accidents Fund as 'the fund'.)

[3] Each of the three plaintiffs in this matter instituted action against the fund in hercapacity as mother and natural guardian of her minor child, who was allegedly injured ina collision with an unidentified motor vehicle which was negligently driven by someperson unknown.

[4] The defendant filed a special plea essentially raising the defence that the plaintiffs'claims had prescribed, as well as a plea on the merits.

[5] Prior to the hearing of the matter in the Court a quo the parties agreed that theissues raised by the defendant's special plea and the plaintiffs' replication thereto shouldbe dealt with pursuant to a stated case in terms of Rule 33(1) of the Uniform Rules ofCourt.

[6] The case stated by them reads as follows:

'1. The three plaintiffs act in this matter in their representative capacities as mothers andguardians of three minor children who plaintiffs allege were injured in a motor vehiclecollision which occurred on 30 September 1994.

2001 (3) SA p550

FARLAM AJA

2. The plaintiffs claim compensation in terms of the provisions of the Multilateral MotorVehicle Accidents Fund Act 93 of 1989.

3. The plaintiffs' minor children were injured as a result of a collision with a motor vehicle inrespect of which the identity of neither the owner nor driver can be established.

4. The plaintiffs' claims for compensation were delivered to the defendant in October,alternatively November 1996.

5. Defendant maintains that by virtue of the provisions of reg 3(2)(a)(i) plaintiffs' claims forcompensation had to be delivered to the defendant within two years from the date onwhich the claim arose and furthermore that by virtue of the provisions of reg 3(2)(a)(ii)the provisions of reg 3(2)(a)(i) apply to all third parties and claimants irrespective ofwhether they are subject to any legal disability.

6. Plaintiffs admit that the claim forms were delivered to the defendant outside thetwo-year time period from which the claims arose.

7. Plaintiffs maintain, however, that insofar as the provisions of reg 3 provide thatprescription runs against minors, the provisions of the regulation are ultra vires.

8. Plaintiffs contend furthermore that the provisions of the Prescription Act 68 of 1969 andin particular s 13 and s 16 thereof are applicable to the present case, their effect beingthat prescription does not run against the minors.

9. The sole question for decision therefore is whether the minors' claims have becomeprescribed.'

[7] In the Agreement the Multilateral Motor Vehicle Accidents Fund is called the 'MMF'.Chapter XII of the Agreement, which is headed 'Liability of MMF and appointed agents'commences with art 40, which reads as follows:

'The MMF or its appointed agent, as the case may be, shall subject to the provisions of this


agreement be obliged to compensate any person whomsoever (in this agreement called thethird party) for any loss or damage which the third party has suffered as a result of -

(a) any bodily injury to himself;

(b) the death of or any bodily injury to any person,

in either case caused by or arising out of the driving of a motor vehicle by any personwhomsoever at any place within the area of jurisdiction of the members of the MMF, if theinjury or death is due to the negligence or other unlawful act of the person who drove themotor vehicle (in this agreement called the driver) or of the owner of the motor vehicle or hisservant in the execution of his duty.'

[8] Section 6(1) of Act 93 of 1989 empowers the Minister of Transport Affairs to makeregulations to give effect to any provision of the Agreement. The regulations made bythe Minister are referred to in the definition of 'this Act' which is contained in s 1 of theAct and which reads as follows:

'In this Act, unless the context otherwise indicates -

. . .

''this Act'' includes the regulations made under s 6.'

2001 (3) SA p551

FARLAM AJA

[9] Regulation 3(2)(a)(i) and (ii), to which reference is made in the stated case, reads asfollows:

'(2) The liability of the MMF in respect of claims which arise in terms of this regulation shall besubject to the following further conditions:

(a) (i) A claim for compensation for loss or damage suffered by the claimant shall bedelivered to the MMF within two years from the date upon which the claim arose mutatis

mutandis in accordance with the provisions of art 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.'

[10] As can be seen from para 8 of the stated case the plaintiffs rely on the provisions ofss 13 and 16 of the Prescription Act 68 of 1969 in order to repel the defendant's specialplea. These sections read as follows, as far as is material:

'13 (1) If -

(a) the creditor is a minor . . .

and

(i) the relevant period of prescription would, but for the provisions of this subsection, becompleted before or on, or within one year after, the day on which the relevantimpediment referred to in para (a) . . . has ceased to exist,

the period of prescription shall not be completed before a year has elapsed after the dayreferred to in para (i).'

'16(1) . . . [T]he provisions of this chapter [ie chap III, which deals with prescription of debtsand which contains s 13] shall, save in so far as they are inconsistent with the provisions of anyAct of Parliament which prescribes a specified period within which a claim is to be made or an


action is to be instituted in respect of a debt or imposes conditions on the institution of anaction for the recovery of a debt, apply to any debt arising after the commencement of thisAct.'

[11] In his judgment upholding the special plea Claassen J dismissed the plaintiffs'contention that reg 3, insofar as it provided that prescription runs against minors, wasultra vires. He did so, largely on the basis that the ratio in the decision of this Court inMbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA), in which itwas held that reg 3(2)(a)(i) is intra vires s 6 of Act 93 of 1989, must apply with equalforce in relation to reg 3(2)(a)(ii).

[12] Claassen J dealt with the plaintiffs' contention that ss 13 and 16 of the PrescriptionAct apply (with the result that prescription does not run in respect of a minor's claim ina case involving an unidentified vehicle) as follows:

'The short answer to Mr Smith's argument [Mr Smith appeared for the plaintiffs in the Court aquo] is that the regulations form part of the Act by virtue of the definition in s 1 of the Actwhere the words ''this Act'' are defined as including ''the regulations made under s 6''. It iscommon cause that the particular regulations concerned are made under s 6 and thus form partof the Act. In such instance it is, in my view, futile to argue that the Prescription Act appliesbecause the ''Act and the Agreement'' do not stipulate anything in regard to prescriptionperiods applicable to claimants under legal disabilities in respect

2001 (3) SA p552

FARLAM AJA

of unidentified vehicle cases. The fact of the matter is that the ''regulations'' do stipulate suchperiods and these regulations are by definition deemed to be part of the Act. As such, theprovisions of the Prescription Act are ousted. Furthermore, the provisions in the Prescription Actproviding for prescription not to run against minors are directly in conflict with the provisions ofreg 3(2)(a)(ii) and (c)(ii) of the MMF Act. For the above reasons the arguments of Mr Smith

cannot be entertained.'

[13] It is convenient to deal with this latter point first. Although s 16 of the PrescriptionAct is not drafted as clearly as it might be it is reasonably plain that what is intended isthat the provisions of chap III will apply to all debts save where they are ousted by theprovisions of an Act of Parliament which is inconsistent and then only to the extent of theinconsistency. The inconsistent provisions which have to be included in an Act ofParliament and which will oust some or all of the provisions of chap III are provisionswhich (a) prescribe a specified period within which a claim is to be made; (b) prescribe aspecified period within which an action is to be instituted in respect of a debt; or (c)impose conditions on the institution of an action for the recovery of a debt. Regulation3(2)(a) is a provision falling under (c) above because it purports to impose conditions onthe institution of an action. It follows from the plain terms of s 16 that unless suchprovision has the status of an Act of Parliament it is invalid.

[14] I do not agree that the provisions of the Prescription Act are ousted because of thefact that in s 1 of Act 93 of 1989 the words 'this Act' are defined so as to include theregulations made under s 6. It is clear from the introductory words to s 1 that thestatutory definition of 'this Act' applies in the interpretation of Act 93 of 1989 itself.There is no substantive elevation of the regulations to the status of an Act ofParliament. It is instructive in this regard to compare how the regulations are dealt within s 1 with what is said in s 2(1) about the Agreement, viz:

'The Agreement . . . shall, subject to the provisions of this Act, have the force of law and applyin the Republic of South Africa, as if it were an Act of Parliament of the Republic of South


Africa.'

(The emphasis is mine.)

[15] In other words it is clear that the Agreement has been expressly given the status ofan Act of Parliament and it was accordingly accepted by this Court in Road Accident Fundv Smith NO 1999 (1) SA 92 (SCA) that provisions in the Agreement dealing withprescription oust inconsistent provisions of the Prescription Act in terms of s 16 thereof.

[16] If Parliament had intended the regulations made under s 6 of Act 93 of 1989 also tohave that status so as to oust inconsistent provisions of the Prescription Act, I wouldhave expected a similar provision to that contained in s 2 to have been included asregards the regulations.

[17] In the absence of such a provision it cannot be held in my view that the regulationsare to be regarded as included in Act 93 of 1989 for any purpose other than interpretingthe expression 'this Act' therein and they do not have the status of an Act of Parliamentfor any other purpose. The

2001 (3) SA p553

FARLAM AJA

result is that they cannot oust the provisions of Chap III of the Prescription Act in thecase of a minor's claim in terms of the Agreement where such claim arises out of thedriving of a motor vehicle of which the identity of neither the owner nor the driver can beascertained. It follows that the plaintiffs' contention as set out in para 8 of the statedcase should, in my view, have been upheld.

[18] Mr Wessels, who appeared with Mr Van Vuuren on behalf of the respondent,submitted that even if the regulations did not amount to an Act of Parliament for thepurposes of s 16 of the Prescription Act, the plaintiffs' appeal should still fail. Thisargument rested on the premise that the condition contained in reg 3(2)(a)(i) was acondition in the proper sense of that word. He contended that as the rights conferred onthe minors in this case were conditional rights only, no debts, within the meaning of thePrescription Act, arose in respect of which prescription could run until the condition towhich they were subject had been fulfilled. After the expiry of the two-year periodreferred to in reg 3(2)(a)(i), he submitted, no claims for compensation having beendelivered to the fund on behalf of the minors concerned and the condition having thusfailed, the conditional rights which the minors had against the fund fell away.

[19] The reason these rights fell away was not, he contended, because they hadprescribed but because, no unconditional debt having arisen, prescription never ran at alland the extinction of the minors' conditional rights simply occurred when the conditionon which they were dependent failed on the expiry of the two-year period.

[20] In order for this contention to succeed one has to be satisfied as to two things: (1)that the 'condition' referred to in reg 3(2)(a)(i) is a suspensive condition properlyso-called, ie an uncertain future event pending the happening of which the minorsconcerned have no enforceable rights against the fund, and (2) that the Minister had thepower under s 6 of the Act to impose the condition contended for.

[21] As to the first point it is instructive to have regard to the decision of this Court inthe Mbatha case supra. Although one has difficulty with the result of the case, for areason which I shall set out below, it considered the 'condition' referred to in reg3(2)(a)(ii) to be a prescriptive period and not a condition properly so-called (see at 716C


where reference is made to a so-called condition and at 720A and E where the two-yearperiod imposed by reg 3(2)(a)(i) is referred to in terms as a prescriptive period).

[22] I said earlier that one has difficulty with the result to which the Court came in theMbatha case supra. This is because counsel for the appellant in that case did not rely ons 16 of the Prescription Act and no consideration was given to the aspect of the matterdealt with above.

[23] As to the second point, an analogous argument was considered by this Court inPadongelukkefonds (voorheen Multilaterale Motorvoertuigongelukkefonds) v Prinsloo1999 (3) SA 569 (SCA), in which it was held that reg 3(1)(a)(v), which provided that thefund would not be liable in

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FARLAM AJA

a case involving an unidentified motor vehicle where there was no physical contactbetween the vehicle and the injured person or the deceased or anything which causedthe injuries or death, was ultra vires.

[24] The Court's reasons for coming to this conclusion appear from the following passage(at 574F - 575A):

Die bepaling in reg 3(1)(a)(v) dat, as voorvereiste vir aanspreeklikheid aan die kant van dieMMF, daar in die geval van 'n ongeïdentifiseerde voertuig fisiese kontak moet wees, vind, soosreeds aangedui, nie weerklank in òf die Wet òf die Ooreenkoms nie. Dit stel 'n beperking opaanspreeklikhheid wat onbestaanbaar is met die wye betekenis van art 40 van die Ooreenkomsen wat die trefwydte daarvan verminder. Dit gee nie gevolg aan art 40 of enige ander bepalingvan die Ooreenkoms nie; die teenoorgestelde is eerder waar (vgl S v Grindrod Transport (Pty)

Ltd and Others 1980 (3) SA 978 (N) op 983F - G). Die Minister se bevoegdheid kragtens art6(1) van die Wet is 'n suiwer regulerende bevoegdheid. 'n Verbod wat volgens so 'nbevoegdheid opgelê word, is ongeldig (R v Williams 1914 AD 460 op 465 en 467; S v Perumal

1977 (1) SA 526 (N)). Hierdie beginsel behoort eweneens te geld waar 'n reg ontneem word asgevolg van 'n ongemagtigde beperking van aanspreeklikheid, soos in die onderhawige geval.Ek stem ook saam met die Hof a quo dat ''art 6 van die Wet dui nie die bedoeling aan tot dieverleen van die bevoegdheid om aanspreeklikheidsuitsluiting by wyse van regulasie neer te lênie'' (sien die gerapporteerde uitspraak op 314e-f). Die plaas van 'n andersins ongemagtigdebeperking op die MMF se aanspreeklikheid is ook nie redelikerwyse diensbaar (''reasonablyincidental'') aan die Minister se verleende bevoegdhede nie. Gevolglik het die Hof a quo mynsinsiens tereg bevind dat reg 3(1)(a)(v) ultra vires is.'

[25] In my view, by parity of reasoning, it is clear that the Minister was not empoweredby s 6 of Act 93 of 1989 to endeavour to convert the unconditional liability created by art40 into a conditional liability.

[26] I do not think that the position is altered by the fact that s 2(1) of the 1989 Actprovides that the Agreement has the force of law 'subject to the provisions of this Act'(which includes the regulations). The purpose of the Agreement, which was anagreement between the government of the Republic of South Africa and thegovernments of the then independent (or quasi-independent) TBVC states, was clearlyto introduce a uniform system in terms of which persons who had suffered loss arisingout of the driving of motor vehicles in the Republic of South Africa or any of the TBVCstates through personal injuries or the deaths of persons who owed them a duty ofsupport would be able to recover compensation from the fund or one of its appointedagents. To this end art 40 provided that the fund or its agents would be liable to personswho suffered such loss if the drivers or owners of the motor vehicles in question were


negligent.

[27] The purpose of creating a uniform system of liability throughout the Republic ofSouth Africa and the TBVC states would be defeated if the Minister were able byregulations applicable only in the territory of one of the participating states to cut downor render conditional the unconditional liability provided for in art 40 of the Agreement.This provides a further reason for holding that it could never have been the

2001 (3) SA p555

intention of Parliament when it passed the 1989 Act to empower the Minister to renderthe unconditional liability created by art 40 of the Agreement conditional.

[28] It follows for the reasons I have given that Mr Wessels' alternative submission mustalso be rejected.

The following order is made:

1. The appeal is upheld with costs, including those occasioned by the employmentof two counsel.

2. The order of the Court a quo is altered to read:

'Defendant's special plea is dismissed with costs.'

Smalberger JA, Vivier JA, Howie JA and Streicher JA concurred.

Appellants' Attorneys: Raphael & David Smith Inc, Johannesburg; Lovius-Block,Bloemfontein. Respondent's Attorneys: Brugmans Inc, Johannesburg; Honey & PartnersInc, Bloemfontein.

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