IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA

REPORTABLE
Case no:  164/2005
In the matter between
SIAS SMITH

APPELLANT

and

THE ROAD ACCIDENT FUND

RESPONDENT

Coram:
MPATI DP, NAVSA, CONRADIE, LEWIS and HEHER JJA

Heard:
27 FEBRUARY 2006

Delivered: 17 MARCH 2006

Summary:  Motor Vehicle Insurance – Road Accident Fund Act 56 of 1996 –
liability of Fund to indemnify negligent defendant.
Damages – Apportionment of Damages Act 34 of 1956, s 2(1) – whether Road
Accident Fund a joint wrongdoer with negligent defendant.

Neutral citation:  This judgment may be referred to as S Smith v RAF [2006]
SCA 12 (RSA).

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_

JUDGMENT
____________________________________________________________________
_

HEHER JA
HEHER JA:
[1] A plaintiff who is unable to identify a defendant cannot pursue a cause of
action. Motor vehicle accidents lend themselves to drivers who disappear and leave
their victims without recourse. In 1964 the legislature, recognizing the social inequity
of such cases, provided for payment of compensation from a fund where the identity
of the owner or driver could not be established. All succeeding legislation has made
equivalent provision, that presently in force being s 17(1)(b) of the Road Accident
Fund Act 56 of 1996. In this matter the appellant seeks to extend the right of recourse
against the Road Accident Fund to a negligent driver who is sued by a third party (as
defined in s 17(1)) in the circumstances described below.

[2] In the High Court of the Eastern Cape Mary Pedro claimed payment of
R2 563 728,20 from the appellant as damages for injuries sustained by her while
being conveyed as a fare-paying passenger in a vehicle negligently driven by the
appellant. The amount of her claim took into account an amount of R25 000 paid by
the Fund in accordance with its liability under s 18(1)(b) of the Act. The appellant
defended the action. In his plea he alleged that the collision was caused wholly or in
part by a Sentra vehicle and/or a Mazda vehicle and that the details of the registration,
owners and drivers of the two vehicles were unknown to him.

[3] The appellant caused a third party notice in terms of rule 13(1) to be served on
the Fund in which he alleged that the Fund was obliged by s 17(1) of the Act to
compensate Pedro for the loss or damage she had suffered as a result of her bodily

injuries1. However, if the court were to find that he had negligently contributed to the
incident and to the injuries thus sustained, then, so the appellant alleged, he and the
Fund would be joint wrongdoers as against the plaintiff, save that he would be
excused by the provisions of 21 of the Act, read together with 18, thereof from
liability for the first R25 000,00 of any damages suffered by the plaintiff.
Accordingly the appellant sought a conditional order
‘1.
Declaring that the Defendant and the [Fund] are joint wrongdoers as against
the Plaintiff;
2.
Determining the respective degrees of blame of the Defendant and the [Fund];
3.
Declaring that in the event of the Defendant effecting payment to the Plaintiff
of such amount as might be awarded in favour of the Plaintiff against the
Defendant, then and in that event the Defendant will be entitled to recover so
much thereof as equates to the percentage degree of blame of the Defendant;
4.
An appropriate award as to costs, including the costs of the Plaintiff’s action
against the Defendant.’
The Fund disputed the entitlement of the appellant to join it as a joint wrongdoer and
to claim relief based on such a joinder. The dispute was tried between the Fund and
the appellant as a preliminary issue at the trial.

[4] The court a quo upheld the objections of the Fund and dismissed the claims in
the third party notice with costs. The judgment of Liebenberg J is reported sub nom
Smith v Road Accident Fund at [2004] 4 All SA 579(E). The appellant now appeals
with leave of that court against its order.

1 ‘17(1) The Fund or an agent shall-
(a) 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 the driver thereof has been established;
(b)    subject to any regulation made under section 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,
be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a
result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or
arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due
to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties as employee.’

[5] Certain propositions enunciated by the court a quo have been accepted by
appellant’s counsel as correct. They are supported by authority and the legislation and
need merely to be stated.
1.
The object of the Act is the payment of compensation in accordance with its
terms for loss or damage wrongfully caused by the driving of motor vehicles.
2.
The effect of the Act is to substitute the Fund as a defendant in place of the
wrongdoer.
3.
The liability of the Fund is to compensate a person (the third party) who has
suffered loss or damage as a result of bodily injury to himself or herself or the
death of or any bodily injury to any other person.
4.
When the driver or owner of an offending vehicle cannot be identified s
17(1)(b) provides for a claim to be made against the Fund ‘subject to any
regulation made under s 26’.
5.
The regulations which have been made under s 26 may only be invoked by the
third party.
6.
Certain of the regulations require strict compliance before the liability of the
Fund can arise.2
7.
No regulations have been published which may be invoked by or confer
benefits on persons in the position of the appellant, ie defendants in
proceedings under the Act.

[6] The appellant’s counsel did not dispute that to grant the relief sought by his
client would be to concede a right to claim against the Fund without the strict
compliance with the regulations which is required of the third party before the Fund
attracts liability. The court a quo described such a conclusion as ‘unsustainable’.
Given the reasons for the existence of strict requirements in unidentified vehicle
cases3 that was an appropriate criticism. Before us counsel was unable to urge any

2 Eg reg 2(1)c; see Road Accident Fund v Thugwana 2004 (3) SA 169 (SCA).
3 Mbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA) at 718G-I.

good reason to favour a negligent driver/defendant above the third party. Nor did he
explain why his client should be entitled to claim an indemnification in respect of a
claim by the third party which the latter could not herself have recovered from the
Fund (because of the limitations placed on the claim of a passenger).

[7] Faced with the legislative intention as it emerges from the propositions to
which I have referred, counsel sought refuge in what he called a ‘necessary
implication’. As I understood it, the argument ran like this: the Apportionment of
Damages Act 34 of
1956 confers a right upon a wrongdoer sued delictually to claim an apportionment
from a joint wrongdoer; the unknown driver is a joint wrongdoer as against the third
party; if the third party had instituted action relying on the negligence of the unknown
driver the Fund would have stepped into the shoes of that driver; by joining the Fund
the defendant is merely doing what the third party could have done, thereby enabling
the court to determine who should pay compensation to the third party, a
determination which is consistent with the purpose of the Act and the objects of the
Fund; indemnification is merely ‘the flip side’ (counsel’s phrase) of compensation.
Thus, so the argument ran, the relief which the appellant claimed was inherent in the
Act and necessary to ensure that its objects were not frustrated.

[8] Alternatively, so counsel submitted, his client’s entitlement to an
indemnification flowed from the clear wording of s 2(1) of the Apportionment of
Damages Act.4

[9] In my view the submissions are contrived and untenable. I have drawn
attention to the substance of s 17 of the Act, viz the compensation of victims of road
accidents arising out of death or bodily injury. The appellant is not a victim and the

4 ‘(1)
Where it is alleged that two or more persons are jointly or severally liable in delict to a third person (hereinafter
referred to as the plaintiff) for the same damage, such persons (hereinafter referred to as joint wrongdoers) may be sued

loss against

in the same action.’

which he seeks indemnification is purely pecuniary in nature. The designated
beneficiary of the Fund is not the uninjured negligent driver but the victim of his
driving. The Act and regulations manifest a clear and consistent intention in this
regard. To imply the existence of a right in such a person to sue the Fund for a
contribution or indemnity would fly in the face of reason and be contrary to the
express terms of the Act. The limitation cannot have been accidental nor does the
exclusion of persons in the position of the defendant give rise to an anomaly since it
is fair to say that such a negligent driver does not even have a moral claim on the
Fund.

[10] Counsel’s reliance on the Apportionment of Damages Act is also misplaced.
That statute does not, as counsel submitted, create a cause of action in s 2(1). What it
does is to provide a means of sharing the burden of damages between joint
wrongdoers in delict. Prima facie the Fund is not such a wrongdoer when an
unidentified driver or owner is involved because its liability is essentially statutory,
proof of a delict alone being, by reason of the regulations to the Act, wholly
insufficient to establish a cause of action against it.5 But the legislature has, in the
circumstances of this appeal, put the matter beyond doubt by providing (in s 3 of the
Apportionment of Damages Act6) that s 2 applies where a liability is imposed in terms
of the Road Accident Fund Act. While the Fund is a person on whom liability is
imposed in circumstances contemplated in that Act to the third party, it is not, as I
have found, under any liability to a negligent driver who inflicts loss or damage upon
a third party. The consequence is that the Fund cannot be a joint wrongdoer with the
appellant in the circumstances of this appeal.

5 I express no opinion as to the correctness of the opposite conclusion reached by Du Plessis AJ in Maphosa v Wilke en
andere 1990 (3) SA 789(T) at 798A-G in relation to the liability of the Fund when the driver is identifiable.
6 ‘The provisions of section two shall apply also in relation to any liability imposed in terms of the Motor Vehicle
Accident Act, 1986 (Act 84 of 1986), on the State or any person in respect of loss or damage caused by or arising out of
the driving of a motor vehicle.’

[11] The appeal has no merit. It is dismissed with costs.

__________________
J A   HEHER

JUDGE OF APPEAL

MPATI DP
)Concur
NAVSA JA
)
CONRADIE JA )
LEWIS JA
)
Supreme Court of Appeal of South Africa
MEDIA STATEMENT
From:
The Registrar, Supreme Court of Appeal
Date:
Friday 17 March 2006
Status:
Immediate

On 17 March 2006 the Supreme Court of Appeal delivered judgment in the matter of
Sias Smith v The Road Accident Fund.

Mr Smith was the defendant in an action in the Port Elizabeth High Court. The
plaintiff claimed damages for bodily injuries suffered by her resulting from the
negligent driving of a motor vehicle by the defendant in which she was a fare-paying
passenger.

The defendant denied liability. He pleaded that the accident had been caused by the
negligence of two other vehicles whose drivers and details were unknown to him.

The defendant joined the Fund as a third party under the rules of court alleging that if
he were found to have been negligent such negligence fell to be apportioned against
the drivers of the other two vehicles, that the Fund was liable to compensate the
plaintiff for damages suffered at the hand of those persons and that the Fund was
accordingly to be regarded as a joint wrongdoer with him and liable to compensate the
plaintiff according to the proportionate negligence of those drivers. He claimed
indemnification from the Fund in accordance with such an apportionment. The Fund
denied that it was a joint wrongdoer and denied further liability to compensate the
plaintiff or to indemnify the defendant against part of any order for damages made in

favour of the plaintiff.

The trial court upheld the Fund’s objection. It dismissed the defendant’s conditional
claim for an indemnification. The defendant appealed.

The SCA dismissed the appeal. It held that-
(1)
an uninjured negligent driver has no claim against the Fund in the
circumstances relied on by the defendant;
(2)
the benefits conferred by the RAF Act on an injured third party in the case of
the negligence of an unidentified driver are not available to a defendant whose
negligence contributed to the injuries;
(3)
the Fund cannot be a joint wrongdoer for the purposes of apportioning damages
unless it is liable under the RAF Act, which, as against the defendant in this
case, it was not.
--ends--