THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE

CASE  NO: 355/2002

In the matter between :

ADRIAAN BEZUIDENHOUT
Appellant

and

THE ROAD ACCIDENT FUND
Respondent

___________________________________________________________________________
Before:
VIVIER, FARLAM, CAMERON, CONRADIE JJA &
SHONGWE AJA
Heard:
13 MAY 2003
Delivered:
2 JUNE 2003
Summary:
Reg 2(1)(d) of the regulations promulgated in terms of s 26 of the
Road Accident Fund Act 56 of 1996 held to be ultra vires.
___________________________________________________________________________

J U D G M E N T
___________________________________________________________________________

VIVIER  JA

VIVIER JA:
[1] The issue in this appeal is whether reg 2(1)(d) of the regulations
promulgated in terms of s 26 of the Road Accident Fund Act 56 of 1996 ('the
present Act') is ultra vires the empowering provisions of the Act.
[2] The appellant ('the plaintiff') sued the respondent ('the Fund') in the
Transvaal Provincial Division for payment of compensation for loss or
damage resulting from injuries suffered by him on 28 February 1999 when the
vehicle in which he was travelling left the N1 highway. He alleged that this
was caused by the negligent driving of a motor vehicle of which the identity
of neither the owner nor the driver thereof had been established ('the
unidentified vehicle'). The Fund pleaded that it was a single vehicle collision
and that, if another vehicle was involved, there was no physical contact with
the plaintiff's vehicle as required by reg 2(1)(d). The Fund accordingly denied
that it was liable to compensate the plaintiff in terms of s 17(1) of the Act.

The plaintiff replicated that reg 2(1)(d) was ultra vires s 26.
[3] At the trial Basson J agreed to deal first with the issue of the validity of
reg 2(1)(d). During argument on this issue it was common cause that there
had been no physical contact between the plaintiff's vehicle and the alleged
unidentified vehicle. The learned judge held that reg 2(1)(d) was intra vires
and granted an order 'dismissing the plaintiff's exception with costs'. As I
have indicated this was not an exception. In effect the order granted was a
declaratory order that the Fund was not liable to the plaintiff so that the order
was appealable. Leave to appeal was granted pursuant to a petition to this
Court.
[4] The date of commencement of the present Act was 1 May 1997 and the
regulations were promulgated on 25 April 1997 with effect from 1 May 1997.
The accident in question was accordingly governed by the provisions of the
present Act and the regulations promulgated in terms thereof. The Act

includes the regulations (s 1).
[5] Regulation 2(1)(d) 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 —
(a)
……………….
(b)
………………..
(c)
…………………
(d)
the motor vehicle concerned (including anything on, in or attached to it) came into
physical contact with the injured or deceased person concerned or with any other
person, vehicle or object which caused or contributed to the bodily injury or death
concerned.'
[6] 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 unidentified vehicle
claims the Fund's liability is made 'subject to any regulation made under s 26'.
The question then is whether reg 2(1)(d) was a valid exercise of the powers

granted by s 26 to the Minister to make regulations.  Section 26(1) reads:
'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.'
[7] In construing s 26(1) it must be borne in mind, as a starting point, that
the present Act is the latest in a line of enactments dating back to 1942
designed to compensate persons injured, or the dependants of persons killed,
through the negligent driving of motor vehicles. The intention throughout has
been to give such persons the greatest possible protection. See decisions of
this Court in cases such as Aetna Insurance Co v Minister of Justice 1960 (3)
SA 273 (A) at 285 E-F; S.A. Eagle Insurance Co Ltd v Pretorius 1998 (2) SA
656 (SCA) at 659 J; S.A. Eagle Insurance Co Ltd v Van der Merwe NO 1998
(2) SA 1091 (SCA) at 1095J-1096B and Padongelukkefonds (voorheen
Multilaterale Motorvoertuigongelukkefonds) v Prinsloo 1999 (3) SA 569
(SCA) at 574 A-B. In Pretorius this Court said the following about the

Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 ('the MMF Act')
which was replaced by the present Act:
'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. In the result the Act was also intended to provide the
protection referred to in the Aetna Insurance Co case supra, and it must be interpreted
accordingly.'
[8] There is no express indication in the present Act of an intention or
general object any different from that of the previous enactments.  According
to its long title the present Act provides for the establishment of the Fund and
matters connected therewith.  Section 3 states the object of the fund to be 'the
payment of compensation in accordance with the Act for loss or damage
wrongfully caused by the driving of motor vehicles'.  There is no express
provision in the Act limiting or excluding liability in the case of unidentified
vehicle claims on the basis of lack of physical contact.

[9] Counsel for the Fund submitted that s 26(1) by implication empowers
the Minister to impose by regulation the requirement of physical contact.
Since the exclusion of liability in non-contact cases could hardly be said to
'achieve or promote the object of this Act', he argued that these modifying
words at the end of s 26(1) were intended to apply only to the phrase which
immediately precedes it namely 'regulations . . . . . which may be necessary or
expedient to prescribe'.  The submission was therefore that regulations made
by the Minister in terms of the first part of the section namely 'to prescribe
any matter which in terms of this Act shall or may be prescribed', such as the
regulations referred to in s 17(1)(b), may validly widen and travel beyond the
object and purpose of the present Act.
[10] It is certainly not clear whether the modifier at the end of s 26(1)
modifies 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 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 meaning 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.'

In the case of Utah Construction and Engineering (Pty) Ltd and

Another v Pataky [1966] 2 WLR 197 (PC), [1966] AC 629 (PC), the Privy
Council considered the validity of a regulation made in terms of a statutory
provision which empowered the Governor of New South Wales to 'make
regulations not inconsistent with this Act prescribing all matters which are
required or authorised to be prescribed or which are necessary or convenient
to be prescribed for carrying out or giving effect to this Act'. Dealing with the
argument that the regulation in issue could be justified as being within the
empowering section, the Privy Council said at 202 (adopting a statement in
the judgment of the High Court of Australia in Shanahan v Scott (1956) 96
CLR 245 at 250) that the power delegated by an enactment:
'does not enable the authority by regulations to extend the scope or general operation of the
enactment but is strictly ancillary. It will authorise the provision of subsidiary means of
carrying into effect what is enacted in the statute itself and will cover what is incidental to
the execution of its specific provisions. But such a power will not support attempts to
widen the purposes of the Act, to add new and different means of carrying them out or to
depart from or vary the plan which the legislature has adopted to attain its ends.'

[11] The exclusion of liability in non-contact cases falls outside the object
and purpose of the present Act. In fact it runs counter to the intention of the
present Act which, as I have said, is designed to give the greatest possible
protection to victims of the negligent driving of motor vehicles.
[12] There is good reason for the provision in s 17(1)(b) making the Fund's
liability in the case of 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 v Multilateral Motor Vehicle Accidents Fund  1997 (3) SA 713
(SCA) at 718 H, the possibility of fraud is greater in unidentified vehicle
cases since it is usually difficult for the Fund to find evidence to controvert
the claimant's allegations. Regulations of a regulatory or evidentiary kind
designed to eliminate fraud and facilitate proof would thus fall within the
power to regulate. But these would be truly incidental or ancillary to the
object of the Act. The exclusion of liability in reg 2(1)(d), however, allows

the delegate to travel wider than the object and purpose of the legislature and
must accordingly be held to be ultra vires.
[13] Any doubt about the meaning of s 26(1) is, in my view, removed when
regard is had to the pre-existing legislation (cf Ebrahim v Minister of the
Interior 1977 (1) SA 665 (A) at 680 A-D and Prinsloo's case, supra at 567 A-
B). Section 32(1)(b) of the Motor Vehicle Insurance Act 29 of 1942, as
amended by s 22 of Act 60 of 1964, specifically empowered the Minister to
make regulations 'limiting and controlling the right of any person' to payment
from the Contribution Fund in a case involving an unidentified vehicle. Act
29 of 1942 was replaced by the Compulsory Motor Vehicle Insurance Act 56
of 1972. Section 32(1)(g) of this Act contained a similar provision
empowering the Minister to make regulations restricting the MVA Fund's
liability to pay compensation in the case of an unidentified vehicle. Both these
Acts thus expressly authorised the Minister to make regulations limiting or

restricting liability to pay compensation in the case of an unidentified vehicle.
Act 56 of 1972 was replaced by the Motor Vehicle Accident Act 84 of 1986
which was in turn replaced by the MMF Act. The two latter Acts contained no
provision similar to those of its precursors empowering the Minister to limit
or restrict liability in the case of claims involving an unidentified vehicle.
Section 8 of Act 84 of 1986 and art 40 of the Agreement in the MMF Act
provided in almost identical terms for the liability of the respective Funds
without distinguishing between claims for compensation where the identity of
the owner or driver of the vehicle involved had been established and claims
for compensation involving an unidentified vehicle. Section 17(1) of Act 84
of 1986 empowered the Minister to make regulations as to:
'(a)
………………
(b)
any matter which in terms of this Act is required or permitted to be prescribed by
regulation;
(c)
in general, any matter which he may consider necessary or expedient to prescribe in
order to attain or promote the objects of this Act.'

Section 6(1) of the MMF Act provided that 'the Minister may make
regulations to give effect to any provision of the Agreement as applicable in
the Republic'.
[14] It will be seen that s 26(1) of the present Act and s 17(1)(a) and (b) of
Act 84 of 1986 provide for the same two categories of regulations in almost
identical language. The two categories are regulations which shall or may be
prescribed in terms of the Act and those which may be necessary or expedient
to prescribe. In s 17(1) of Act 84 of 1986 the qualifying words 'in order to
attain or promote the objects of this Act' appear only at the end of sub-para (c)
whereas in s 26(1) of the present Act sub-paras (b) and (c) of s 17(1) of Act
84 of 1986 are conflated into one sentence appearing in one sub-section, with
the qualifier appearing at the end of the sentence. In my view the changes
indicate an intention to apply the qualifier to both categories (cf Collie NO v
The Master, 1972 (3) SA 623 (A) at 630A).

[15] In Prinsloo this Court considered the validity of reg 3(1)(a)(v) issued in
terms of s 6 of the MMF Act. This was the precursor to the present reg 2(1)(d)
and was identical to the present reg 2(1)(d). In holding that reg 3(1)(a)(v) was
ultra vires Smalberger JA, who delivered the unanimous judgment of this
Court, said at 574D-575A):
'Artikel 6 van die Wet magtig die Minister om regulasies uit te vaardig "ten einde
gevolg te gee aan 'n bepaling van die Ooreenkoms soos in die Republiek van toepassing".
Dit magtig nie die Minister om regulasies uit te vaardig buite die omvang en bestek van die
Ooreenkoms wat nie redelikerwys nodig is om die doel van art 6(1) te bereik nie.
Regulasies is ondergeskikte wetgewing voortvloeiend uit 'n gedelegeerde voorskrif. 'n
Regulasie moet in die lig van die magtigende Wet uitgelê word, nie andersom nie
(Sekretaris van Binnelandse Sake v Jawoodien, 1969 (3) SA 413 (A) op 423E). 'n
Regulasie wat dus nie gevolg gee aan 'n bepaling van die Ooreenkoms nie, is ultra vires
(Mbatha v Multilateral Motor Vehicle Accidents Fund, 1997 (3) SA 713 (HHA) op 718C).
Die bepaling in reg 3(1)(a)(v) dat, as voorvereiste vir aanspreeklikheid aan die kant

van die MMF, daar in die geval van 'n ongeï dentifiseerde voertuig fisiese kontak moet
wees, vind, soos reeds aangedui, nie weerklank in óf die Wet óf die Ooreenkoms nie. Dit
stel 'n beperking op aanspreeklikheid wat onbestaanbaar is met die wye betekenis van art
40 van die Ooreenkoms en wat die trefwydte daarvan verminder. Dit gee nie gevolg aan
art 40 of enige ander bepaling van 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 art 6(1) van die Wet is 'n suiwer regulerende
bevoegdheid. 'n Verbod wat volgens so 'n bevoegdheid 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 as gevolg van 'n omgemagtigde
beperking van aanspreeklikheid, soos in die onderhawige geval. Ek stem ook saam met die
Hof a quo dat "(a)rt 6 van die Wet dui nie die bedoeling aan tot die verleen van die
bevoegdheid om aanspreeklikheidsuitsluiting by wyse van regulasie neer te lê nie" (sien
die gerapporteerde uitspraak op 314e-f). Die plaas van 'n andersins omgemagtigde
beperking op die MMF se aanspreeklikheid is ook nie redelikerwyse diensbaar
("reasonably incidental") aan die Minister se verleende bevoegdhede nie. Gevolglik het die

Hof a quo myns insiens tereg bevind dat reg 3(1)(a)(v) ultra vires is.'
[16] What Smalberger JA said in the passage quoted above about the nature
and extent of the power conferred on the Minister in the empowering section
of the MMF Act applies with equal force to s 26(1) of the present Act. The
mere fact that s 17(1) of the present Act, unlike its precursors in Act 84 of
1986 and the MMF Act, distinguishes between claims involving identified
and unidentified vehicles, is insufficient indication of an intention to widen
the regulatory power under s 26(1) so as to authorise the Minister to make
regulations which are inconsistent with the object and purpose of the Act.
Had the legislature intended to empower the Minister to exclude liability by
regulation it would have said so expressly as it did in the empowering
sections of the 1942 and 1972 Acts.
[17] In Prinsloo Smalberger JA said at 575C-D that there was good reason
for the requirement of physical contact in unidentified vehicle cases. He relied

on the judgment in Mbatha at 718J where Harms JA did not mention the
requirement of physical contact but merely stated generally, as I have
indicated above, that there was good reason for having stricter requirements
for unidentified vehicle cases. Smalberger JA also relied on Khumalo v
Multilateral Motor Vehicle Accidents Fund [1997] 2 All SA 341 (N) at 346 f-
g where Broome DJP gave the prevention of fraudulent claims as the reason
for the requirement of physical contact. No other reason has been suggested
for this requirement and I can think of none. Assuming a case of well-
evidenced and fully proved negligent driving of an unidentified vehicle, as
one should do in considering the matter.  The undifferentiated imposition of
the requirement of physical contact may well be regarded as unreasonable.
Postulate the case of the negligent driver of an unidentified vehicle swerving
on to his incorrect side of the road, his vehicle just scraping one oncoming
car, missing a second one altogether but forcing both these vehicles to leave

the road in trying to avoid him. To exclude by regulation a claim for
compensation in the one case but not in the other may well be said to be such
unequal discrimination as to be invalid for unreasonableness since the
intention could never have been to authorise it (S v Mahlangu and Others
1986 (1) SA 135 (T) at 144B-145A). It is not, however, necessary for me to
decide this point.
[18] For the reasons I have given the Court a quo should have held that
reg 2(1)(d) is ultra vires. The case of Khasane v Road Accident Fund [2002] 4
All SA 40 (W) must accordingly be regarded as having been wrongly
decided.
[19] The appeal succeeds with costs including the costs of two counsel. The
order of the Court a quo is altered to read:
'It is declared that reg 2(1)(d) of the regulations issued in terms of
s 26(1) of Act 56 of 1996 is ultra vires.' The defendant is ordered to pay the

costs of the hearing relating to the validity of reg 2(1)(d).

__________________
VIVIER JA

FARLAM JA)
CAMERON JA)
CONRADIE JA)
CONCUR
SHONGWE AJA)