THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 1286/18

In the matter between:

A A JONES
APPELLANT

and

ROAD ACCIDENT FUND
RESPONDENT

Neutral Citation:
Jones v RAF (1286/18) [2019] ZASCA 173 (2 December 2019)
Coram:
Wallis and Zondi JJA and Tsoka, Gorven and Eksteen AJJA
Heard:
18 November 2019
Delivered:
2 December 2019
Summary:
Motor vehicle accident – claim for compensation against Road
Accident Fund in terms of s 17(1)(a) of the Road Accident Fund Act 56 of 1996 –
identification must establish the identity of the owner or driver of offending motor
vehicle. Identification of a series of vehicles and their owners – requirements of
s 17(1)(a) not met – claim falls under s 17(1)(b) of the Act read with regulation 2.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: The Gauteng Division of the High Court, Pretoria (Van der Schyff AJ
sitting as court of first instance):
The appeal is dismissed with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Zondi JA (Wallis JA and Tsoka, Gorven and Eksteen AJJA concurring):
[1] Two issues arise for determination in this appeal. The first, is whether a claim
for compensation lodged by the appellant, Mr A Jones with the Road Accident Fund
(RAF) is a claim in terms of s 17(1)(a) of the Road Accident Fund Act 56 of 1996 (the
Act), or one in terms of s 17(1)(b) of the Act read with regulation 2(1)(b) of the
Regulations promulgated in terms of s 26 the Act. The second issue is whether the
appellant's claim has become prescribed. The difference between s 17(1)(a) and
s 17(1)(b) is that the former is concerned with claims where the identity of the owner
or driver of the insured vehicle has been established and the latter with the case where
the identity of the owner or driver of the insured vehicle has not been established. In
the former case the prescriptive period is three years, while in the latter it is two years
from the date of the accident.

[2] The Gauteng Division of the High Court, Pretoria (Van der Schyff AJ)
determined that the appellant's claim was a claim that falls under s 17(1)(b) of the Act,
read with regulation 2(1)(b). The high court accordingly held that the appellant's claim
had become prescribed as it was not lodged within the prescribed period of two years
contemplated in regulation 2. In the result the high court dismissed the appellant's
claim with costs but granted the appellant leave to appeal to this court.

[3] The issue allegedly arose in the following circumstances: On 17 February 2012
the appellant was the driver of a Volkswagen Golf motor vehicle with registration letters

and number HGS 171 NW. On the road between Orkney and Stilfontein, a chunk of
gold ore, forming part of a load being transported from the mine at Orkney to a refining
facility, fell from or became dislodged from a moving truck (insured vehicle). He alleged
that this was as a result of the negligence of the insured driver. The rock penetrated
the windscreen of the appellant's vehicle and struck him on the forehead. In
consequence the appellant claimed to have sustained a head and brain injury.
Following the accident and the resultant bodily injuries the appellant on 15 February
2015 lodged a claim with the RAF.

[4] Thereafter, on 25 April 2016 the appellant caused summons to be issued in the
high court against the RAF for the damages he had allegedly sustained. In paragraph
3.2 of his amended particulars of claim the appellant listed 23 vehicles and the nine
owners thereof. He contended that one of these vehicles was probably the insured
vehicle conveying the ore at the time of the accident. The RAF defended the action
and filed a special plea in which it contended that the insured vehicle was a vehicle as
contemplated in s 17(1)(b), read with regulation 2. This covers a vehicle of which
neither the identity of the owner, nor the identity of the driver has been established.
The RAF contended that the appellant's claim had become prescribed because it was
lodged more than two years after the cause of action arose.

[5] By agreement between the parties the high court made an order that the special
plea be separately adjudicated. To that end on 22 August 2013 the parties prepared
a stated case setting out the issues to be decided in terms of rule 33(4) of the Uniform
Rules of Court. The material portion of the document reads as follows:
‘THE AGREED FACTS
1.1
The action, instituted in terms of the Road Accident Fund Act, 56 of 1996 (“the Act”),
arises from bodily injuries sustained by the plaintiff (whilst being the driver of his vehicle) in a
motor vehicle accident which occurred on 17 February 2012 on the road between Orkney and
Stilfontein.
2.
The accident allegedly occurred when a rock, forming part of gold ore being transported fell
from or became dislodged from a heavy motor vehicle/truck trailer combination (“the insured
vehicle”), penetrated the windscreen of the plaintiff’s vehicle and struck the plaintiff on his

head – this allegation is not admitted by the defendant, but can be accepted solely for
purposes of adjudicating the prescription issue which falls to be decided.

3.
3.1
The accident was allegedly caused by the negligence of the driver of the insured
vehicle which conveyed the ore, such negligence being set out in paragraph 5 of the
particulars of claim – this allegation is not admitted by the defendant, but can be accepted
solely for purposes of adjudicating the prescription issue which falls to be decided; and

3.2
Whilst the driver of the insured vehicle could not be identified, a series of vehicles and
their owners were subsequently identified, one of which probably conveyed the ore at the time
and of which the details are set out in paragraph 3.2 of the particulars of claim (one being in
the alternative to the other).
4.
The plaintiff’s claim was lodged more than two years after the date on which the cause of
action arose i.e. the date of the accident, i.e. too late for a claim in terms of section 17(1)(b) of
the Act (read with regulation 2(1)) but in time for a claim in terms of section 17(1)(a) thereof.
5.
THE PLAINTIFF’S CASE
It is the plaintiff’s case that
5.1
the fact that a group of vehicles and their owners were identified of which one was the
vehicle from which the ore fell and injured the plaintiff, is sufficient identification to place the
claim outside the envisaged scope of section 17(1)(b) of the Act and regulation 2(1)(b) (“the
regulation”) of the regulations promulgated in terms of the Act; and
5.2
which means that the insured vehicle was not a vehicle where the identity of the owner
has not been established (as contemplated in the regulation) albeit that the identity of the
driver has not been established; and
5.3
that the claim is therefore a claim which falls within the scope of section 17(1)(a) of the
Act, being a claim where the identity of the owner of the vehicle has been established and that
it was accordingly timeously lodged.
6.
THE DEFENDANT’S CASE
It is the defendant’s case that
6.1
the insured vehicle was a vehicle as contemplated in section 17(1)(b) and in the
regulation viz. one of which neither the identity of the owner nor the identity of the driver has
been established and

6.2
the claim has become prescribed because it was lodged more than two years after the
cause of action arose.
7.
THE ISSUE FOR ADJUDICATION
The parties agree that the following issues serve to be adjudicated:
7.1
Is the plaintiff’s claim a claim as contemplated in section 17(1)(a) of the Act or is it a
claim to be adjudicated in terms of and subject to section 17(1)(b) read with regulation 2(1)(b)
of the regulations promulgated in terms of the Act?
7.2
Has the plaintiff’s claim accordingly become prescribed for want of lodging it within the
prescribed two years contemplated in regulation 2(1)(b) or has it been timeously lodged?’

[6] This is what was dealt with by Van der Schyff AJ. She found in favour of the
respondent on both issues. According to the high court the crisp question was whether,
where an accident is caused in circumstances where it is not possible to identify a
specific vehicle as ‘the insured vehicle’, but it is possible to identify a series of vehicles
and their owners, one of which probably caused or contributed to the accident at the
time and place where the accident occurred, the claim falls in the category of what is
often referred to as an ‘identified’ claim as opposed to an ‘unidentified’ – or hit-and-run
– claim. The high court rejected the appellant’s contention that the stated case before
it did not involve the interpretation of any provision of the Act and that it had only to be
discerned whether the claim was formulated as a so called ‘identified’ claim. It held
that the substance of the appellant’s particulars of claim, not the form in which it was
formulated, should be considered and that the enquiry should involve the interpretation
of s 17(1)(a). I cannot find fault with the high court's reasoning in this regard.

[7] It went on to hold at para 28:
‘In the current case, a series of vehicles and their owners were identified, 23 vehicles to be
precise, respectively linked to one of 9 different vehicle owners, one of which probably
conveyed the ore at the time (one being in the alternative to the other). This scenario is to be
distinguished from a multi-vehicle accident where more than one vehicle was undeniably
involved in the collision, but the degree of fault of each driver needs to be determined. In the
current case the driver and/or owner of only one out of 23 vehicles probably caused the
plaintiff’s damages. The vehicle is not identified, and as a consequence neither can the identity
of the driver or owner from whose vehicle the gold carrying ore fell, be established prima facie
on a balance of probabilities. On the facts as accepted for purposes of deciding the stated

case, the plaintiff is not able to show the causal link between any specific vehicle being driven
at a specific time, and the damages that he suffered. It accordingly follows that, on these facts,
the claim had to be instituted in accordance with s 17(1)(b).’

[8] In argument before us counsel for the appellant submitted that if the claim, as
formulated, is a claim where the owner of the insured vehicle has been identified, the
claim is one which factually clearly falls within the provision of s 17(1)(a) of the Act. He
said that the only 'unidentified' aspect of the claim was that the driver of the vehicle at
the time had not been identified. He emphasised that s 17(1)(a) requires no more than
identification of either the driver or the owner and, if either one is identified, it is clearly
a claim which falls under that section and not s 17(1)(b). The issue was whether the
identification tendered was sufficient to establish the identity of the owner of the
insured vehicle.

[9] It should be mentioned that it was accepted by all that the identity of the driver
was not established. The issue was whether the identity of the owner of the insured
vehicle had been established within the meaning of those words in the section in
question. It was argued on behalf of the appellant that the fact that the appellant relied
on a number of different vehicles (identified by their registration numbers) and different
owners in the alternative, did not render his claim one against an 'unidentified' vehicle
in terms of s 17(1)(b) and the regulation. This was so, it was argued, because, in the
first place, a claim in terms of s 17(1)(a), but for the enactment and provisions of the
Act, has its origin in the common law as a delictual claim against the wrongdoer. So
too a claim in terms of s 17(1)(b), save that the absence of knowledge of the identity
of the owner or driver made it difficult to pursue a claim at common law.1 The Act, so
the argument proceeded, effectively provides that the RAF steps into the shoes of
such common law wrongdoer, as the previous legal right to claim compensation for
damages suffered from the common law wrongdoer has been replaced by a statutory
legal right to claim from the RAF.

[10] The principal argument advanced on behalf of the RAF was that the appellant's
identification did not bear scrutiny as neither the driver, nor the owner's identity had

1 Engelbrecht v Road Accident Fund & another [2007] ZACC 1; 2007 (6) SA 96 (CC) para 20.

been established. It was argued that furnishing a series of vehicles and their owners
on the assumption that one of them caused the accident does not amount to
establishing the identity of the owner of the vehicle involved in the specific accident. It
was submitted that because the appellant was uncertain about the identity of the
owner of the accident-causing vehicle, the appellant should have lodged his claim for
compensation within two years of the date of the accident under s 17(1)(b), which does
not require him to establish the identity of the driver or owner.

[11] The question whether the appellant’s identification of the owner of the insured
vehicle meets the requirements of the Act involves the interpretation of s 17(1) which
is the section that imposes the obligation on the RAF to provide compensation. The
relevant portion of s 17(1) reads:
'17. Liability of Fund and agents
(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: . . .'

[12] The regulations at issue in the present appeal are regulations 2(1)(a) and (b) of
the regulations contained in Government Gazette 31249 of 21 July 2008. They read:
'2
Further provision for liability of Fund in terms of section 17(1)(b)
(1)(a) A claim for compensation referred to in section section 17(1)(b) of the Act shall be sent
or delivered to the Fund in accordance with the provisions of section 24 of the Act, within two
years from the date upon which the cause of action arose.
(b) A right to claim compensation from the Fund under section 17(1)(b) of the Act in respect
of loss or damage arising from the driving of a motor vehicle in the case where the identity of

neither the owner nor the driver thereof has been established, shall become prescribed upon
the expiry of a period of two years from the date upon which the cause of action arose, unless
a claim has been lodged in terms of paragraph (a).
(c) In the event of a claim having been lodged in terms of paragraph (a) such claim shall not
prescribe before the expiry of a period of five years from the date upon which the cause of
action arose.
(2) Notwithstanding anything to the contrary contained in any law a claim for compensation
referred to in section 17(1)(b) of the Act shall be sent or delivered to the Fund within two years
from the date upon which the cause of action arose irrespective of any legal disability to which
the third party concerned may be subject.'

[13] This court, in Mbatha v Multilateral Motor Vehicle Accident Fund,2 explained the
rationale for this regulation in unidentified vehicle cases in these terms:
'In these cases the possibility of fraud is greater; it is usually impossible for the Fund to find
evidence to controvert the claimant's allegations; the later the claim the greater the Fund's
problems . . .'3

[14] The question in this appeal is whether the appellant has established the identity
of the driver or owner of the truck from which the rock which caused injury to him, fell
or was dislodged. This turns on the meaning to be attached to the word 'established'
appearing in s 17(1) of the Act.

[15] One is required to interpret s 17(1) in accordance with the principles enunciated
in recent cases such as KPMG4, Endumeni5, Bothma-Batho6 and Dexgroup.7 The
approach to interpretation of written instruments, whether they are contracts or
statutes, is usefully summarised thus in Dexgroup:
'. . . These cases make it clear that in interpreting any document the starting point is inevitably
the language of the document but it falls to be construed in the light of its context, the apparent
purpose to which it is directed and the material known to those responsible for its production.

2 Mbatha v Multilateral Motor Vehicle Accident Fund [1997] ZASCA 25; 1997 (3) SA 713 (SCA) at 718H-
I.
3 See also Road Accident Fund v Thugwana [2003] ZASCA 139; [2004] 1 All SA 275 (SCA) para 10).
4 KPMG Chartered Accountants (SA) v Securefin Ltd and another 2009 (4) SA 399 (SCA) paras 39–
40.
5 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.
6 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494
(SCA) para 12.
7 Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd 2014 (1) All SA 375 (SCA) paras 10–17.

Context, the purpose of the provision under consideration and the background to the
preparation and production of the document in question are not secondary matters introduced
to resolve linguistic uncertainty but fundamental to the process of interpretation from the
outset.'

[16] In para 25 of Endumeni Wallis JA pointed out that
'...[s]ometimes the language of the provision, when read in its particular context, seems clear
and admits of little if any ambiguity. Courts say in such cases that they adhere to the ordinary
grammatical meaning of the words used. However that too is a misnomer. It is a product of a
time when language was viewed differently and regarded as likely to have a fixed and definite
meaning, a view that the experience of lawyers down the years, as well as the study of
linguistics, has shown to be mistaken. Most words can bear several different meanings or
shades of meaning and to try to ascertain their meaning in the abstract, divorced from the
broad context of their use, is an unhelpful exercise. The expression can mean no more than
that, when the provision is read in context, that is the appropriate meaning to give to the
language used. At the other extreme, where the context makes it plain that adhering to the
meaning suggested by apparently plain language would lead to glaring absurdity, the court
will ascribe a meaning to the language that avoids the absurdity. This is said to involve a
departure from the plain meaning of the words used. More accurately it is either a restriction
or extension of the language used by the adoption of a narrow or broad meaning of the words,
the selection of a less immediately apparent meaning or sometimes the correction of an
apparent error in the language in order to avoid the identified absurdity.'

[17] The primary object of the Act as set out in s 3 is 'the payment of compensation
in accordance with this Act for loss or damage wrongfully caused by the driving of
vehicles'. In achieving this purpose the Act provides for the establishment of the RAF
and mechanisms including procedures for the payment of compensation for loss or
damage wrongfully caused by the driving of vehicles. Section 21 of the Act abolishes
a claimant’s common law delictual claim and substitutes a statutory claim against the
RAF in its place to ensure the recovery of damages by a road accident victim, who
may have a proven legal claim and proven damages against the common law
wrongdoer, but may find that the wrongdoer is unable to pay his or her damages.

[18] The Concise Oxford English Dictionary 12ed defines 'established' to mean
'show to be true or certain by determining the facts'. This is the ordinary meaning of

the word 'established' and in my view, having regard to the context in which it appears
and the purpose of the Act, it is the appropriate meaning to give to the language used
in s 17(1). In other words, there must be a sufficiently close connection between a
readily identifiable vehicle being driven at a specific time and the injury that the
claimant suffered.

[19] In the present appeal the appellant sought to bring his claim within s 17(1)(a) in
order to overcome the problem of prescription. In support of that and in an attempt to
establish the identity of the owner of the offending vehicle the appellant identified 23
vehicles, having nine different owners, in the alternative, by their registration numbers.
One of these probably conveyed the ore at the time of the accident. In other words,
the appellant’s identification did not establish that a specific vehicle was driven at the
time and place of the accident and that the chunk of ore fell or was dislodged from that
vehicle. It was contended on behalf of the appellant that the identification he provided
was sufficient to bring his claim within the ambit of s 17(1)(a) and was sufficient to
enable the RAF to undertake its investigation. I disagree. The appellant’s identification
did not establish the identity of the owner or driver of the motor vehicle which caused
the accident. It was nothing more than a sample of vehicles, one of which, may have
been the vehicle from which the ore fell on the day of the accident.

[20] This case does not fall into the category of cases such as Mazibuko v Santam
Insurance8 in which a plaintiff, who was uncertain as to which of two persons was
legally responsible for the injury sustained by him, sued both of them in the alternative
and jointly and severally, as he was permitted to do under rule 10(3) of the Uniform
Rules of Court. The distinguishing feature was that in those cases the identity of the
owners or drivers of the motor vehicles involved or contributing to the accident was
established but what remained to be established was their legal responsibility. In the
present case it is not alleged that more than one of the 23 vehicles was involved in the
accident. The case was pleaded and the stated case formulated on the basis that one
of the 23 vehicles identified by the appellant probably conveyed the ore at the time
and place of the alleged accident.

8 Mazibuko v Santam Insurance and another 1982 (3) SA 125 (A).

[21] In my view the word 'established’ appearing in s 17(1) does not bear the
extended meaning contended for by the appellant. The appellant's construction, if
adopted, would lead to a conclusion that would stultify the broader operation of the
Act. It would have the effect of blurring the distinction the legislature draws between a
claim under s 17(1)(a) and one under s 17(1)(b). The ordinary meaning of ‘established’
does not lead to absurdity. Its meaning does not therefore require to be extended.

[22] Although in terms of s 17(1) the RAF is liable to compensate both categories of
claimants for damages arising from driving of a motor vehicle, irrespective of whether
the identity of the owner or the driver of the motor vehicle has been established, its
liability under s 17(1)(b) is rendered subject to the regulation 2(1) which stipulates that
a claim under s 17(1)(b) should be lodged within two years of the date of the accident.
No constitutional challenge was raised to the different prescriptive periods applicable
to the two types of claim. The reason appears to be a view that the regulation serves
a legitimate government purpose, which is to eliminate fraud and to facilitate proof,
because the possibility of fraud is greater in unidentified vehicle, since it is usually
difficult for the RAF to find evidence to controvert the claimant's allegations.9 In this
case the claim prescribed because it was not lodged with the RAF within the period of
two years from the date of the accident.

[23] In the result the appeal is dismissed with costs.

_________________
D H Zondi
Judge of Appeal

9 Bezuidenhout v Road Accident Fund [2003] 3 All SA 249 (SCA) para 12.

APPEARANCES:

For appellant:
W P de Waal SC

Instructed by:

Adams & Adams, Pretoria

Honey Attorneys, Bloemfontein

For respondent:
J H P Hattingh (heads of argument prepared by C H Badenhorst)

Instructed by:

Morare Thobejane Attorneys, Pretoria

Maponya Attorneys, Bloemfontein