THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case no: 295/06

In the matter between:

ROAD ACCIDENT FUND

Appellant

and

PEDRO ERNESTO MONJANE
Respondent

Coram

:
SCOTT, CAMERON, CLOETE, MAYA JJA et

THERON AJA

Date of Hearing
:
4 MAY 2007
Date of delivery
:
18 MAY 2007

Summary:  An employee who sustains an ‘occupational injury’ as defined in Act 130 of
1993 will have no claim under the Road Accident Fund Act 56 of 1996 if the wrongdoer
is his or her employer.

Neutral Citation: This judgment may be referred to as Road Accident Fund v Monjane
[2007] SCA 57 RSA.

SCOTT JA/…

SCOTT JA:

[1] The appellant is the Road Accident Fund, a juristic person established
in terms of s 2 of the Road Accident Fund Act 56 of 1996 (‘the RAF Act'). The
respondent (the plaintiff in the court below) instituted action in the Pretoria
High   Court   against   the   Fund   for   the   payment   of   damages   in   the
sum   of
R417 600 in respect of injuries he sustained in consequence of the negligent
driving of a motor vehicle by Mr Michael Duarte. The circumstances in which
his injuries were sustained are set out in paragraph 3 of his amended
particulars of claim, which reads:

‘On or about the 22nd day of May 1997 and at approximately 11 am and at the Krugersdorp
Market, Krugersdorp, Gauteng Province, the plaintiff was engaged in the loading of
vegetables on a certain motor vehicle with registration number GZT056T driven by one
Michael Duarte when the said driver suddenly and without warning and with reckless
disregard for the presence and safety of the plaintiff pulled away or put his said truck in
motion causing the plaintiff to fall from the said vehicle.’

The Fund filed a special plea in which it averred that on 22 May 1997 the
plaintiff’s employer was the driver of the vehicle concerned and that even if
the plaintiff’s injuries were caused by the former’s negligent driving the Fund
was not liable to the respondent in law –

‘. . . because in terms of Section 19(a) of the Road Accident Fund Act, Act 56 of 1996 [the
Fund] shall not be obliged to compensate any person for any loss or damage for which
neither the driver nor the owner of the motor vehicle concerned would have been liable [and]
in terms of Section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130
of 1993, no action shall lie by the Plaintiff (as employee) against the said insured driver (the
employer).’

The matter came before Shongwe J who, at the request of the parties,
ordered that the special plea be dealt with first. No evidence was adduced but
the parties reached agreement on the facts necessary for the determination of
the special plea. They were: (a) that the respondent was ‘a pedestrian’ at the

time of the accident (by which the parties presumably intended to convey that
the respondent was not ‘being conveyed in or on the motor vehicle concerned’
within the meaning of s 18 of the RAF Act); (b) that he was in the employ of
Duarte and was carrying out his duties in pursuance of that employment when
the accident occurred; and (c) that Duarte was solely to blame for the
accident. After hearing argument and reserving judgment Shongwe J
dismissed the special plea with costs, but subsequently granted the Fund
leave to appeal to this court.

[2] Before dealing with the issues raised in the special plea it is necessary
to outline the relevant statutory provisions.

[3] Section 17 of the RAF Act imposes on the Fund (or an agent) an
obligation ‘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 . . . 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 . . .’ . Where the identity of the driver or owner has been established
(as in the present case) this obligation is stated in s 17(1)(a) to be ‘subject to
this Act’. The sections that follow contain a number of qualifications to the
general obligation imposed in s 17.

[4] In terms of s 18(1) and (2) the Fund’s liability is limited in certain
specified circumstances where the third party was at the time of the
occurrence being conveyed in or on the motor vehicle concerned. Section
18(2) is relevant. It provides for a limitation of the Fund’s liability:

‘where the loss or damage contemplated in section 17 is suffered as a result of bodily injury to
or death of any person who, at the time of the occurrence which caused that injury or death,
was being conveyed in or on the motor vehicle concerned and who was an employee of the
driver or owner of that motor vehicle and the third party is entitled to compensation under the
Compensation for Occupational Injuries and Diseases Act, 1993 (Act No 130 of 1993), in
respect of  such injury or death’.

[5] In terms of s 19 the liability of the Fund (or agent), as contemplated in s
17, is excluded altogether in certain circumstances. Of relevance is s 19(a). It
provides that the Fund shall not be obliged to compensate any person in
terms of s 17 for loss or damage –
‘for which neither the driver nor the owner of the motor vehicle concerned would have been
liable but for section 21.’
Section 21, in turn, provides that when a third party is entitled under section
17 to claim from the Fund or agent, ‘that third party may not claim
compensation in respect of that loss or damage from the owner or from the
person who so drove the vehicle, . . .  unless the Fund or such agent is unable
to pay the compensation’.
[6] Section 35(1) of the Compensation for Occupational Injuries and
Diseases Act 130 of 1993 (‘COIDA’) precludes an employee from recovering
damages from his or her employer in respect of an ‘occupational injury’. The
section reads:
‘No action shall lie by an employee or any dependant of any employee for the recovery of
damages in respect of any occupational injury or disease resulting in the disablement or
death of such employee against such employee’s employer, and no liability for compensation
on the part of such employer shall arise save under the provisions of this Act in respect of
such disablement or death.’
‘Occupational injury’ is defined in s 1 to mean ‘a personal injury sustained as a
result of an accident’. ‘Accident’, in turn, is defined as ‘an accident arising out
of and in the course of an employee’s employment and resulting in personal
injury, illness or death of the employee.’
[7] Against the background I turn to the contentions of the parties. The
appellant’s defence raised in the special plea is simply that on the basis of the
agreed facts it is not liable to the respondent (ie the third party) for
compensation in terms of s 17 of the RAF Act because, by virtue of s 35(1) of
COIDA, the respondent’s employer, Duarte, being the driver whose
negligence caused the accident, would not have been liable to the
respondent; and in terms of s 19(a) of the RAF Act, the Fund is not obliged to

compensate a third party for loss or damage for which neither the driver nor
the owner of the motor vehicle concerned would have been liable but for s 21.

[8] As I understand the contention advanced on behalf of the respondent –
and seemingly accepted by the court a quo – it is this. Section 18(2) of the
RAF Act does not create a new right of action against the Fund; it serves
merely to qualify or limit the Fund’s liability under s 17. That limitation, it is
argued, relates solely to the situation where the third party is conveyed ‘in or
on the motor vehicle concerned’ and accordingly s 18(2) contemplates that a
third party will have an unlimited claim where he or she was not being
conveyed in or on the motor vehicle concerned even though the vehicle was
owned or being driven at the time by the third party’s employer. I pause to
observe that this argument would no doubt be correct if it were not for the
provisions of s 19(a), read with s 35(1) of COIDA. The respondent contends,
however, that if s 19(a) of the RAF Act were to be construed so as to preclude
an action against the Fund in every case where the vehicle concerned was
owned or driven by the third party’s employer regardless of whether the third
party was being conveyed in or on the vehicle, the effect would be to render
meaningless the limitation contained in s 18(2). Accordingly, so it was
contended, s 19(a) had to be strictly construed so as not to exclude the
liability of the Fund in a case such as the present.

[9] The argument is unsound. The effect of s 18(2), when read with s 19(a)
(and s 35(1) of COIDA) is that the limited claim contemplated in s 18(2) will lie
against the Fund when the wrongdoer, whether the driver or the owner of the
vehicle concerned, is not the third party’s employer. In such a case the claim
is limited but not precluded. It is only when the wrongdoer is the third party’s
employer that the claim is precluded. In such a case the claim will be
precluded regardless of whether or not the third party is being conveyed in or
on the motor vehicle concerned, provided only that the injury sustained by the
third party is an ‘occupational injury’ as defined in  COIDA. The effect of s
19(a), read with s 35(1) of COIDA, is therefore not to render s 18(2)
meaningless.

[10] The same argument which was advanced by the respondent in the
present case was advanced in Mphosi v Central Board for Co-operative
Insurance Ltd1 in relation to para (aa) of the second proviso to s 11(1) of the
Motor Vehicle Insurance Act 29 of 1942, being the equivalent of the present s
18(2) of the RAF Act.2 In rejecting it, Botha JA at 646B gave as an example of
when the paragraph would be applicable, the case where A, the owner of the
insured motor vehicle, lets the vehicle to B, an employer of labour, to transport
his workers from one place to another, and one or more of the workers are
injured in an accident arising out of the negligence of the owner of the vehicle
for having let a dangerously defective vehicle to B. In such a case (as the
learned judge pointed out in relation to the provisions of the 1942 Act) the
injured workers would be entitled to compensation under COIDA but their
common law action for damages would not be precluded by s 35(1) of that
Act. They would accordingly be entitled to proceed against the Fund, but
subject to the limitation imposed by s 18(2) of the RAF Act.

[11] It follows that the respondent’s answer to the special plea cannot
prevail and the appeal must succeed.

[12] It is no doubt so that where an ‘occupational injury’ is sustained in the
context of a motor accident s 35(1) of COIDA may on occasions have
seemingly unfortunate consequences. The reason is that the basis upon
which compensation is determined under COIDA differs markedly from that
under the
RAF Act. The effect of s 35(1) is to deprive an employee of his or her
common-law right of action to claim damages from an employer. But COIDA
substitutes a
system which has advantages for an employee not available at common law.3
The RAF Act, like COIDA, constitutes social legislation but it caters for a

1 1974 (4) SA 633 (A).
2 The first proviso to s 11(1) of the 1942 Act is the equivalent of the present s 19(a); s 13 of
the 1942 Act is the equivalent of the present s 21 and s 7(a) of the Workmen’s Compensation
Act 30 of 1941 is the equivalent of s 35(1) of COIDA.
3 The constitutionality of s 35(1) of COIDA was upheld in Jooste v Score Supermarket Trading
(Pty) Ltd 1999 (2) SA 1 (CC).

different situation. Inevitably, as in the present case, there will be some
overlapping of the areas covered by each and provision is made for an injured
party in certain circumstances to claim under both Acts.4 But ultimately,
however, a line must be drawn and where that is to be is essentially a
question of policy for the legislature to decide. Section 19(a) of the RAF Act,
read with s 35(1) of COIDA, indicates where that line has been drawn: an
employee who sustains an ‘occupational injury’ in the context of a motor
accident will have no claim under the RAF Act if the wrongdoer is his or her
employer. This was recognised by this court as long ago as 1974 in Mphosi’s
case. It is a well-established rule of construction that the legislature is
presumed to know the law, including the authoritative interpretation placed on
its previous enactments by the courts. Significantly, the legislature has in a
series of subsequent enactments retained in substance the statutory
provisions upon which Mphosi’s case was decided.5 It must be accepted,
therefore, that the construction placed upon them correctly reflects the policy
of the legislature.

[13] The appeal is upheld with costs. The order of the court a quo is set
aside and the following order is substituted in its place:

‘The special plea is upheld with costs.’

__________

D G SCOTT

4 See eg s 18 (2) of the RAF Act and s 36 of COIDA.
5 Compulsory Motor Vehicle Insurance Act 56 of 1976; Motor Vehicle Accidents Act 84 of
1986; Multilateral Motor Vehicle Accidents Fund Act 93 of 1989.

JUDGE OF APPEAL
CONCUR:

CAMERON JA
CLOETE
JA
MAYA
JA
THERON
AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

ROAD ACCIDENT FUND AND P E MONJANE
CASE NO 295/06

From :
The Registrar, Supreme Court of Appeal
Date:
18 May 2007
Status:
Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today  upheld an appeal against a decision of
the High Court, Pretoria, which had held that a worker who sustained
injuries in a motor accident caused by the negligence of his employer was
entitled to recover compensation under both the Road Accident Fund and
the Compensation for Occupational Injuries and Diseases Act.

The facts were that the worker, Mr Pedro Monjane, fell off a truck and was
injured while loading vegetables when his employer, Mr Michael Duarte,
suddenly and without warning set the truck in motion.

It was common cause that the injury sustained by Mr Monjane was an
‘occupational injury’ within the meaning of the Compensation Act although
it was sustained in the context of a motor accident. The SCA held that on a
proper construction of the two Acts it was clear that where the negligent

party in a motor accident was the claimant’s employer, the claimant was
entitled to compensation under the Compensation Act only and not also
under the Road Accident Fund.

The court noted that although it might seem unfair to confine a claimant to
compensation under the Compensation Act, both Acts constituted social
legislation and it was up to Parliament as a matter of policy to decide where
to draw the line between the areas covered by the two Acts.  In certain
limited circumstances a degree of overlapping was permitted and an
injured workman could claim under both Acts, but it was quite clear that
where the negligent party was the claimant’s employer Parliament had
decided that the claim was to be limited to compensation under the
Compensation Act.

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