REPUBLIC OF SOUTH AFRICA

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case Number  :  649 / 02

In the matter between

ROAD ACCIDENT FUND
APPELLANT

and

BENNET LEFU MAKWETLANE
RESPONDENT

Coram :
HOWIE P, MARAIS JA, JONES, SOUTHWOOD and PONNAN  AJJA

Date of hearing :

20 MAY 2004

Date of delivery :
17 FEBRUARY 2005

SUMMARY

Motor vehicle accidents – compensation – claim for in terms of the Road Accident Fund Act 56
of 1996 – validity of reg 2(1)(c)- Regulation not ultra vires.
___________________________________________________________________

J U D G M E N T
___________________________________________________________________

PONNAN AJA
[1] Is regulation 2(1)(c) (‘the regulation’) promulgated by the Minister
of Transport1 pursuant to the power vested in him by section 26 of the
Road Accident Fund Act 56 of 1996 ('the Act') ultra vires?  That
question, which was answered in the affirmative by the court below,2 is
the crisp issue which now confronts this court on appeal.

[2] The regulation provides: ‘In the case of any claim for compensation
referred to in section 17(1)(b) of the Act, the Fund, shall not be liable to compensate
any third party unless … the third party submitted, if reasonably possible, within 14
days after being in a position to do so an affidavit to the police in which particulars of
the occurrence concerned were fully set out’. In Road Accident Fund v
Thugwana 2004 (3) SA 169 (SCA) this court recently had occasion to
consider whether the regulation was ultra vires, as also an ancillary
issue, namely, whether the regulation is peremptory. On each issue it
reached a conclusion contrary to that reached by the court a quo in this
matter. In so doing it held that this matter had been wrongly decided by
the court a quo and specifically overruled it.  That without more, one
would think necessarily puts an end to this appeal. For the reasons that
follow, in my view, it does not.

1 GNR 609 in Government Gazette 17939 of 25 April 1997.   Although promulgated on 25 April 1997,
the regulations were to operate with effect from 1 May 1997, the same date as the commencement of
the Act.
2 The judgment of the court a quo is reported sub nom Makwetlane v Road Accident Fund 2003 (3)
SA 439 (W).

[3] The respondent ('the plaintiff') sued the appellant ('the RAF') in the
Johannesburg Magistrates’ Court for loss or damage suffered by him on
6 May 1999, at Main Road, Freedom Park, Johannesburg, when,
according to him, a motor vehicle collided with him whilst he was a
pedestrian. The cause of the collision, so alleged the plaintiff, was the
negligent driving of the motor vehicle in question of which the identity of
neither the owner nor the driver thereof has been established.

[4] The RAF pleaded that the plaintiff had failed to comply with the
regulation. It accordingly denied that it was liable to compensate the
plaintiff in terms of section 17(1) of the Act and sought the dismissal of
the plaintiff's claim. That and three other points, all of which were
described as special pleas, were considered in limine by the trial court.
Having successfully negotiated the other three, the plaintiff failed to
establish compliance by him with the regulation, resulting in the
dismissal of his action.

[5] The court a quo reversed that finding of the trial court on appeal
and substituted in its stead an order dismissing the RAF's special plea
with costs. In so doing, it held that the regulation was ultra vires. Leave
having been granted by it, the matter now serves before this court on
appeal.

[6] The proper approach to an enquiry such as the present is to
consider inter alia the context of the regulation, the overall purpose of
the statute, the legislative history and to subject the regulation in
question to constitutional scrutiny.

[7] The Act here under consideration is the latest in a long series of
enactments dating back to 1942.3 The present Act, like its predecessors,
is designed to compensate persons who are injured, or the dependants
of persons who are killed in consequence of the negligent driving of
motor vehicles. The Act must be given a liberal interpretation as it, again
like its predecessors, is intended ' ... to give the greatest possible
protection, by way of insurance, to persons who have suffered loss
through a negligent or unlawful act on the part of the driver or owner of a
motor vehicle' (Aetna Insurance Company v Minister of Justice 1960 (3)
SA 273 (A) at 285 E-F).4

[8] There is no indication either expressly or otherwise in the present
Act of an intention or general object that is any different to that of its
predecessors. The Act provides for the establishment of a fund, the

3 See Mbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713.
'Although since 1942 legislative amendments and new enactments were required from time to time in
order to adapt to changing needs, and to refine and improve the whole system of compensation, the
principles and object underlying the 1942 Act and its successors have remained unaltered'. (S A
Eagle Insurance Company v Pretorius 1998 (2) SA 656 (SCA) at 659 J).
4 See also S A Eagle Insurance Company Ltd v Van der Merwe NO 1998 (2) SA 1091 (SCA) at 1095J
-1096 B; Padongelukkefonds (Voorheen Multilaterale Motorvoertuigongelukkefonds) v Prinsloo 1999
(3) SA 569 (SCA) at 574A-B; and National Employers General Insurance Company Ltd v Roberts
1994 (1) SA 38 (A) at 47H.

object whereof, as stated in section 3, is '....the payment of
compensation in accordance with the Act for loss or damage wrongfully
caused by the driving of motor vehicles...'.

[9] Section 17 (1) provides:
'(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.'

[10] In Bezuidenhout v Road Accident Fund 2003 (6) SA 61 para 6, this
court held: 'Section 17 (1) distinguishes between the liability of the Fund in the case of a
claim for compensation where the identity of the owner or the driver of the vehicle involved
has been established and the case of a claim for compensation involving an unidentified
vehicle. Section 17 creates liability in both cases, the only difference being that in the case of
the unidentified motor vehicle claims the Fund’s liability is made "subject to any regulation
made under Section 26".’

[11] The question is thus whether the promulgation of the regulation
was a valid exercise of the power granted to the Minister to make
regulations by section 26. Section 26 (1) reads:
'(1)
The Minister shall or may make regulations to prescribe any
matter which in terms of this Act shall or may be prescribed or which
may be necessary or expedient to prescribe in order to achieve or
promote the object of this Act.'

[12] Of section 26(1) this Court stated in Bezuidenhout (para 10):
'It is certainly not clear whether the modifier at the end of s 26(1)
modifes the whole section or only the words which immediately
precede it. In my view, however, this is of no consequence since it
must in any event be implied that s 26(1) cannot empower the making
of regulations which widen the purpose and object of the present Act or
which are in conflict therewith. See R v Hildick-Smith 1924 TPD 69 at
92 and Caney Statute Law and Subordinate Legislation at 88.
Bennion Statutory Interpretation 3rd ed (1997) at 189 points out that
underlying the concept of delegated legislation is the basic principle

that the Legislature delegates because it cannot directly exert its will in
every detail. All it can in practice do is to lay down the outline. This
means that the intention of the Legislature, as indicated in the enabling
Act, must be the prime guide to the making of delegated legislation and
the extent of the power to make it. Bennion continues as follows:
"The true extent of the power governs the legal meaning of the delegated
legislation. The delegate is not intended to travel wider than the object of the
Legislature. The delegate's function is to serve and promote that object,
while at all times remaining true to it." '

[13] It is unnecessary to define with precision the nature of the act
performed by the Minister, for, however defined, and whatever its true
nature, the conduct of the Minister in promulgating the regulation is
subject to constitutional scrutiny. It is a concept central to our
constitutional order that neither the legislature nor the executive may
exercise any power or perform any function beyond that conferred by
law (Fedsure Life Assurance Ltd and Others v Greater Johannesburg
Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) para
58).

[14] The exercise of all public power must comply with the Constitution
and the question whether the Minister acted intra or ultra vires in
promulgating
the
regulation
is
a
constitutional
matter.
(See
Pharmaceutical Manufacturers Association of SA and Another: In re ex

parte President of the Republic of South Africa and Others 2000 (2) SA
674 (CC).) Thus what would have been ultra vires under the common
law by reason of a functionary exceeding a statutory power is invalid by
virtue of the doctrine of legality under the Constitution (Pharmaceutical
Mnfrs. para 50; see also Minister of Correctional Services and Others v
Kwakwa and Another 2002 (4) SA 455 (SCA) para 35). The doctrine of
legality required of the Minister that he comply with the Constitution as
well as act within the parameters of the power conferred upon him by the
Act.

[15] Of the regulation which is ‘not a model of clarity’ (Thugwana para 6),
this court stated: ‘Once a claimant is in a position to make an affidavit, the 14-day
period begins to run. But the claimant may have difficulties in making the necessary
arrangements to depose to an affidavit or to submit it to the police. If the affidavit is
submitted more that 14 days after the claimant was in a position to do so, the
question would arise whether it was reasonably possible for this to have been done
within the 14-day period. If so, the fund will incur no liability. If not, the 14-day period
would be extended for so long as it was not reasonably possible for the claimant to
have submitted it – but no longer. Any other interpretation would absolve a claimant
from the obligation to submit an affidavit at all if this was not reasonably possible
within the 14-day period, or provide no time limit in such a case for the furnishing of
the affidavit; and manifestly neither interpretation can have been what the legislature
intended.’ (See Thugwana para 7.)

[16] The plaintiff was hospitalised for a period of approximately three
weeks immediately following upon the collision.  On 20 July 1999 he
reported the collision to the Mondeor police station.  Although an officer's
accident report (OAR) form was completed, no affidavit, in the sense
contemplated by the regulation, was submitted by the plaintiff to the
police.  On those facts, it is plain that the plaintiff was in a position to
submit the affidavit required by the regulation to the police at the latest
by the 20 July 1999.  No written statement, much less one sworn to
before a Commissioner of Oaths, was made by the plaintiff.  It follows
that there has been non-compliance with the provisions of the regulation
by the plaintiff.

[17] Section 26 empowers the Minister to make regulations in order to
achieve or promote the objects of the Act. It does not confer authority on
him to traverse terrain outside that limited scope and ambit. All
regulations promulgated by the Minister must thus be reasonably
necessary to achieve those objects and goals.  It is indeed so that the
possibility of fraud is greater in cases where the identity of the driver or
owner of the vehicle in question has not been established, as it would
usually be difficult for the RAF to secure evidence to dispute a claim
(see Mbatha at 718H). Stricter requirements would thus be justified in
unidentified vehicle cases. It follows that regulations designed to

eliminate fraud and facilitate proof of legitimate claims, falling as it does
within the Minister’s power to regulate, would be permissible. No other
reason has been suggested for such a requirement and I can think of
none. That legitimate end, may not, however, be achieved by means
that sweep too broadly.

[18] Not all limitations that seek to achieve so laudable a motive as the
elimination of fraud are for that reason alone constitutionally acceptable.
The limitation in this case must be viewed against the backdrop of ‘the
state of affairs prevailing in South Africa, a land where poverty and illiteracy abound
and differences of culture and language are pronounced, where such conditions
isolate the people whom they handicap from the mainstream of the law, where most
persons who have been injured are either unaware of or poorly informed of their
legal rights and what they should do in order to enforce those, and where access to
the professional advice and assistance that they need so sorely is often difficult for
financial or geographical reasons’ (per Didcott J in Moholomi v Minister of
Defence 1997 (1) SA 124 (CC) para 14).

[19]  The Constitution places significant restraints upon the exercise of
public power. It is a requirement of the rule of law that the exercise of
public power should not be arbitrary. It follows that the exercise by the
Minister of the regulatory power conferred upon him had to be rationally
related to the purpose for which the power was granted - rationality
being the minimum threshold requirement. (See Pharmaceutical Mnfrs

para 85 and 86.) Conduct that fails to pass that threshold requirement
would fall below the standards set by our Constitution and would
therefore be unlawful.  Whether such a rational relationship indeed
exists is an objective one.

[20] The 14-day period is but one part of a composite scheme. There
are at least three other component parts to the regulation. It requires of a
claimant that he/she: (i) submit an affidavit; (ii) to the police; (iii) which
sets out the particulars of the occurrence concerned. For its practical
efficacy the regulation is dependent on co-operative members of the
police who are well aware of the duty cast upon them by the regulation.
Whether a justiciable dispute comes before a court of law may depend in
no small part on the whim of a particular member of the police services.
Extraneous factors such as the knowledge and professionalism of the
police, as also the storage capacity and reliability of records kept at any
given police station (see Geldenhuys & Joubert v Van Wyk, Zendra and
Road Accident Fund; and Van Wyk, Zendra v Geldenhuys & Joubert and
Road Accident Fund SCA cases 471 & 472/2003 para 20, 21 and 22
delivered on 30 November 2004) are beyond the control of a claimant
and may likewise be beyond the control of the Minister of Transport.
And yet, the police have an important role to play, which if not diligently
discharged could result in the loss of a claimant’s right.

[21]  The consequence of non-compliance with the regulation, a harsh
one at that, is arbitrary and indiscriminate. It matters not that a claimant
may in fact have been the victim of a hit and run collision and that such
fact could perhaps be established by means of some other compelling
evidence. Assuming an otherwise valid claim, the effect of the regulation
is to non-suit a claimant should there be non-compliance with its
provisions. Indeed, as this court held in Thugwana (para 16) ‘that is likely
to be the situation in the vast majority of cases, as the vast majority of claimants are
unlikely to be aware of the requirements of the regulation’.

[22] I cannot accept that a regulation that non-suits the vast majority of
claimants could possibly ' ... achieve or promote the object of this Act'.
On the contrary, to my mind, it runs counter to the purpose and scope of
the Act. In a country where so few are possessed of the sophistication
and means to enforce their rights, the imposition of the conditions
envisaged in the regulation and the undifferentiated and arbitrary
consequences of its enforcement may well be regarded as being
unreasonable. Such a regulation can hardly be said to have been
authorised by the Act or countenanced by the Constitution. Accordingly,
for the reasons given, I would hold that Regulation 2(1)(c) is ultra vires.

[23] After the appeal had been argued before this court, the parties
were invited to file supplementary heads of argument in respect of
certain defined issues. Those heads of argument, which should have
been filed on behalf of the plaintiff by 30 July 2004, were not. Nor were
they filed by the 27 or 31 August 2004, being the successive extensions
of time granted by the President of this court for that purpose.
Correspondence from the Registrar of this Court to the plaintiff’s attorney
made it plain that no heads of argument would be received thereafter
and that this court would proceed to consider and prepare judgment.
That notwithstanding, heads of argument came to be served on behalf of
the plaintiff on the Registrar of this court at approximately 9pm on 10
September 2004. It was accompanied by an application for condonation,
which was not opposed by the RAF. Although the reasons advanced for
the tardiness makes far from compelling reading and it might well have
been arguable that the heads of argument could have been served and
filed much earlier had the plaintiff’s representatives manifested greater
diligence and tenacity, the delay which in fact ensued has not prejudiced
the RAF in any way as to justify a refusal of the application for
condonation. Those late supplementary heads of argument, did,
however, have the undesirable effect of delaying the finalisation of the
judgment of this court. By the time those heads of argument came to be
lodged, some four months after the hearing of the appeal, of the five

Judges who had heard the matter, two were on leave, one had retired
and one had returned to duty in the Provincial Division.

_______________

V M PONNAN
ACTING JUDGE OF APPEAL

MARAIS  JA
[24] I have had the benefit of reading the judgment of my learned
brother Ponnan but am unable to share in his conclusion that regulation
2(1)(c) is invalid in law.

[25] A regulation which purports to attenuate substantively an
unqualified right of action conferred by enabling legislation would be
obviously ultra vires. It was so held by this court in both
Padongelukkefonds
(voorheen
Multilateral
Motorvoertuig-
ongelukkefonds) v Prinsloo 1999(3) SA 569 (SCA) and Bezuidenhout v
Road Accident Fund 2003 (6) SA 61 (SCA) in relation to a regulation
requiring physical contact to have occurred between the vehicle involved
in a ‘hit and run’ case and the claimant before liability could arise. In

constitutional law parlance such a regulation would infringe the principle
of legality.

[26] A regulation which imposes a reasonable time limit for the lodging
of a claim in such a case is not ultra vires. It was regarded in Mbatha v
Multilateral  Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA) at
718E-F as being consistent with ‘the general rule that the right to
prescribe time limits within which procedural acts must be done is
inherent in the right to regulate’. See too Geldenhuys and Joubert v Van
Wyk and Road Accident Funds;  Van Wyk v Geldenhuys and Joubert
and  Road Accident Fund, cases 471 & 472/2003, 30.11.2004 (SCA).

[27] In regulation 2(1)(c) we have a requirement which, in my view, falls
into neither of these two conceptually clear categories. What the
claimant is required to do must be done after the occurrence which is
alleged to give rise to the claim and in order for the claim to come into
existence.   The liability of the Fund, if any, is plainly derivative; it is
made answerable for the delict of an unidentifiable driver. The delict is
constituted by the negligent driving of a motor vehicle which results in
physical injury or death causing loss. The commission of the delict
cannot depend upon what steps are, or are not, taken after the
occurrence by the claimant. Unlike the situation in the cases of Prinsloo
and Bezuidenhout, the regulation does not purport to qualify the

substantive circumstances of the occurrence which the enabling
legislation has decreed shall potentially give rise to liability. I say
‘potentially’ for the reason given in paras [6] and [7] of this judgment.

[28] Nor does the requirement in issue fall into the category  of things
which must be done vis-à-vis the Fund as part of the process of
instituting the claim, for example (as in the case of Mbatha), lodging the
claim in prescribed form within two years from the date on which the
claim arose. Such a requirement is plainly procedural in character even
although a failure to comply with it may result in inability to pursue the
claim. Here the claim will not have arisen before the required act is
done.

[29] The requirement in regulation 2(1)(c) is not procedural in the
ordinary sense in which that word is understood in the context of
litigation.   The step to be taken is not one to which either the Fund or
the court is to be privy, and it does not constitute a step in the actual
making of a claim. Yet it is a step which must be taken by the claimant
after the commission of the delict as a condition precedent to the Fund
having to compensate the claimant. Can it rightly be said that it amounts
to a substantive attenuation of the liability which the enabling legislation

intended should exist and that it is therefore ultra vires on that ground? I
think not.

[30] First, the premise from which the question posed proceeds does
not exist. In the case of Geldenhuys and Joubert it was held by this court
that the lodging of a claim within the two-year period prescribed by
regulation 2(3) was ‘a precondition to the existence of the debt under the
Act’ and that if the claim is not lodged within that period there is no
‘debt’. (At para [25]). By parity of reasoning, so it seems to me, the same
must apply to the requirement in regulation 2(1)(c). It was emphasised in
that case that the current legislation expressly empowers the Minister ‘to
subordinate the Fund’s liability’ in ‘hit and run’ cases ‘to regulatory
conditions’. (At para [30]). It follows that no accrued and vested right to
be compensated by the Fund was intended to come into being merely
upon the happening of the occurrence. At best the loss sustained was to
be potentially compensable by the Fund. Whether or not liability to
compensate would arise was intended to depend upon what further
requirements might be set by regulation under s 26 of the Act.

[31] The regulatory power so conferred is of course constrained by the
need to stay within well-established boundaries. Apart from the express
injunction in s 26 that any such regulation must ‘be necessary or
expedient … in order to achieve or promote the object of this Act,” there

are the constraints implied ex lege or articulated in the Constitution. In
my view, regulation 2(1)(c) is expedient to achieve or promote the
objects of the Act. My reasons for so thinking will emerge as this
judgment proceeds.

[32] Secondly, even if it were to be assumed that the legislature
intended that the mere happening of the occurrence should give rise to a
right to compensation by the Fund, it would not follow that regulation
2(1)(c) would have to be regarded as thwarting that aim. Of paramount
importance, in my opinion, is that this is a potestative condition with
which it would ordinarily be within the power of a claimant to comply.
The regulation does not purport to deprive, willy nilly, the victim of a ‘hit
and run’ driver of ‘the greatest possible protection’ which the enabling
legislation intended him or her to have. It merely requires the victim to
take a step which it would ordinarily be within the victim’s power to take,
on pain, if the step is not taken, of not being compensated by the Fund.

[33] Are there any other grounds upon which regulation 2(1)(c) can
held to be ultra vires?  If there is a rational purpose behind the
requirement; if the steps required to be taken to achieve that purpose
are not unreasonable and serve the purpose; if the requirement is
regulatory in character and furthers the objects of the enabling

legislation; and, if it does not fall foul of any provision in the Constitution,
it cannot be declared to be invalid.

[34] The purpose of the regulation.

The Fund is obviously in a parlous position when faced with a
claim in a ‘hit and run’ case. It will have no driver’s version of the incident
available to it and, if it has to pay the claim, the right of recourse which s
25 of the Act gives it in such circumstances will be valueless. Fraudulent
claims are an obvious danger in alleged ‘hit and run’ cases. (See the
case of Mbatha, supra, at 718H.) The obligation placed upon a claimant
by the regulation is obviously intended to discourage fraud and to
provide little time for plots to be hatched. How effective it has proved to
be or will be or whether there are other and better ways of deterring
fraud and ensuring bona fides is beside the point. As long as the
regulation has the potential to deter fraud and that potential is not so
minimal as to be derisory, it cannot be said to have no rational purpose. I
turn to that question.

[35] The compulsory involvement of the police soon after the incident is
alleged to have taken place, and the injury or injuries sustained, is
calculated to make would – be fraudsters apprehensive about embarking
upon such an enterprise. The involvement of the police would also mean
that there might be a skilled investigation into the alleged incident which

might well reveal it to be a fabrication. The need to make a statement by
way of an affidavit means that a dishonest claimant would also have to
steel himself or herself to commit perjury. These are considerations
which are conducive towards making potential fraudsters think more
than twice before chancing their arms. An early report, although
obviously not conclusive, also goes some way towards showing bona
fides and serves at least to eliminate fabricated claims concocted long
after the alleged incident, perhaps at the instigation of co-conspirators.

[36] Are the steps to be taken unreasonable and therefore impliedly
prohibited by the enabling legislation?

The requirement of an early report to the police is not, to my mind,
unreasonable. The period within which it must be done is admittedly very
short but, if the vulnerability of the Fund to fraudulent exploitation of its
‘hit and run’ liability is to be lessened in that manner, the time given must
needs be short or the provision will largely fail to achieve its purpose.
Moreover, the obligation is not absolute: there are two significant and
benign qualifications. First, it must have been reasonably possible to do
so, and secondly, the period of 14 days commences to run only after the
claimant is ‘in a position to’ furnish the required affidavit. That the
particulars of the alleged incident are required to be set out in an
affidavit is also not unreasonable for the reason given in para [12].

[37] It is of course so that victims of ‘hit and run’ drivers may be
oblivious of the regulation and may fail to comply with it through
ignorance. As against that there is the consideration  that anyone who
suffers injury and loss as a result of such flagrantly unlawful conduct on
the part of a ‘hit and run’ driver may reasonably be expected to enquire
as soon as reasonably possible what remedies might be available. More
importantly, as I shall illustrate later, the availability of a claim of this kind
represents an act of legislative largesse. Steps taken by regulation to
minimise, as far as possible, fraudulent exploitation of that largesse
should not lightly be condemned as unreasonable even if they may
sometimes result in a genuine victim not receiving compensation.

[38] Is the regulation regulatory in character and does it further the
objects of the enabling legislation?

I have adverted earlier to the problem of characterising correctly
this requirement.  It neither adds to nor subtracts from the foundational
circumstances which the legislature has decreed must exist before any
potential liability can arise, namely, negligent driving by an unidentifiable
driver of a motor vehicle which results in physical injury and loss to
another. It is therefore not inherently subversive of the basic thrust of the
legislation. Nor is it a purely procedural requirement within the normal
meaning of the word ‘procedural’ in the context of litigation. Yet failure to

fulfil it could result in the loss of a genuine potential claim. But the same
can be said of a failure to comply with time limits imposed upon the
bringing of an already existing claim and, as has been seen, these are
regarded as legitimate regulatory provisions. Where, as here, a
regulation is plainly designed to avoid the Fund being duped by
fraudsters into paying compensation to undeserving persons to whom
the legislature did not intend it to be paid, it cannot be said not to further
the objects of the legislation. It is surely as much an object of the
legislation that the resources of the Fund not be used to compensate
fraudulent claimants as it is that those resources be deployed only in
compensating genuine victims of ‘hit and run’ drivers.

[39] Does the regulation fall foul of the Constitution?

There are only two specific provisions in the Bill of Rights which it
was suggested rendered the regulation invalid.  I turn to consider them.

[40] Equality – s 9 of the Bill of Rights

Is the victim of a ‘hit and run’ driver unfairly discriminated against
because the regulation imposes a burdensome obligation upon him or
her which is not imposed upon the victim in a case where the driver is
identifiable? It is so, of course, that in both situations there is a victim
who has been injured and has suffered loss as a consequence of the

negligent driving of a motor vehicle. They are in the same boat to that
extent but they are very differently placed in other vital respects.

[41] In the case of the identifiable driver the claimant, but for s 21 of the
Road Accident Fund Act 56 of 1996, would have been able to institute a
claim at common law against the driver. In lieu of that common law claim
there is a legislatively conferred claim against the Fund. Because the
driver is identified, the Fund will, more often than not, have access to his
or her version of what happened and may be able to resist successfully
an unmeritorious claim. In addition, in a case in which it is held liable, it
may, depending on the circumstances, even have a right of recourse 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 whom proceedings could actually have been instituted at
common law. The existence in theory of such a remedy will be of cold
comfort to the victim. Happily, s 17(1)(b) of the Act, subject to
regulations made under s 26 of the Act, provides a remedy against the
Fund. However, as I have already said, the position of the Fund in such
a situation is invidious. It will have no driver’s version available to it and,
if it has to pay the claimant, the right of recourse which s 25 of 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 unsound and 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 remedy against 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 no
enforceable remedy at common law. Such a victim is really the recipient
of what may be called legislative social largesse. Had there been any
constitutional imperative to bestow that largesse the approach to the
questions which this case poses would have had to be very different but
there is none. In short, to the extent that the obligations which the
regulation imposes upon the victim of a ‘hit and run’ driver are
discriminatory, the discrimination is not unfair to such a victim.

[44] I might add that even if it were so that equality of treatment is
required prima facie, it is at least conceivable that there might be
evidence at the disposal of the Fund which would show that 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 litigation when the issue was not raised in the
court of first instance where evidence could have been led, does not
seem justifiable.

[45] Access to courts – s 34 of the Bill of Rights.

If the respondent’s claim against the Fund had been one which lay
at common law, I would have had little, if any, doubt that limitations upon
its invocation of the kind which the regulation imposes would have been
unreasonably
restrictive
and
would
have
amounted
to
an
unconstitutional fetter upon the access to courts for which s 34 of the Bill
of Rights makes provision. Cf Mohlomi v Minister of Defence 1997 (1)
SA 124 (CC) and Moise v Greater Germiston Transitional Local Council:
Minister of Justice intervening 2001 (4) SA 491 (CC). But it is not such a
claim. Nor, unlike a claim against the Fund when there is an identifiable
driver, is it a legislatively conferred claim given in lieu, and to the
exclusion, of an enforceable common law claim. As I have said, it
amounts to a gratuitous benefit given to a victim of the negligent driving
of a motor vehicle in circumstances where the victim would have had no
enforceable remedy against the culprit at common law because of
inability to identify the culprit. This statutory remedy against the Fund
was conferred despite the inability of the Fund to exercise a right of
recourse against the culprit.

[46] That remedy was not intended to be available come what may. It
was to be available ‘subject to any regulation made under section 26’.
The definition of ‘this Act’ in s 1 ‘includes any regulation made under

section 26’. But this obviously can only mean any intra vires regulation. I
have already explained why I consider that this regulation is not ultra
vires on any other ground. The remaining hurdle of s 34 of the Bill of
Rights is one which does not need to be cleared. That seems to me to
be so because once one concludes that no justiciable claim against the
Fund comes into existence unless and until regulation 2(1)(c) has been
complied with, it must follow that there is no dispute in existence which
there is a constitutional right to have access to a court to resolve. To
suggest that the regulation is an unlawful fetter upon access to a court
implies that there is in existence a justiciable claim.  But there is not.

[47] I agree with Ponnan JA that the respondent failed to comply with
the regulation. Having concluded that it is not ultra vires it follows that,
subject to what follows, the magistrate was correct in upholding the
Fund’s special plea. Section 24(5) of the Act provides that if the Fund
does not within 60 days of the making of a claim ‘object to the validity
thereof, the claim shall be deemed to be valid in law in all respects.’
Counsel for the parties were not able to throw any light upon whether the
Fund had so objected. In the circumstances an order similar to that
made in Road Accident Fund v Thugwana 2004 (3) SA 169 (SCA at
175-6 should be made. Counsel for the Fund supported the taking of this
course.

[48] It is ordered:
1.
The appeal succeeds with costs, including the costs of two
counsel. The order of the court below and the order of the magistrate is
set aside. The following order is substituted therefor:
(a)
The plaintiff is given leave to file a replication to raise the
provisions of s 24(5) of the Act in answer to the special plea within 15
days.
(b)
If plaintiff fails to do so timeously or within such further period as
this court might allow on good cause shown, the plaintiff’s claim is
dismissed with costs, and the plaintiff is ordered to pay the costs of the
hearing on the special plea.
(c)
The plaintiff is ordered to pay the costs of the hearing on the
special plea.
2.
The period of 15 days shall run from the date of this order.
3.
The respondent shall pay the costs of the appeal in the court a
quo.
4.
In the event of it being found, or conceded by the appellant, that
the respondent’s claim must be deemed to be valid by virtue of s 24(5)
of the Act, all the costs orders hitherto made in this order shall fall away
and instead each party shall pay his and its own costs save that the

magistrate must make such order as to the costs of any hearing on the
applicability of s 24(5) as is considered just.

______________________
R M  MARAIS
JUDGE OF APPEAL

CONCURRING:
HOWIE  P
JONES  AJA
SOUTHWOOD  AJA