THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number : 575/2002
Reportable

In the matter between :

ROAD ACCIDENT FUND

Appellant

and

SAMUEL FELI THUGWANA

Respondent

CORAM :
HARMS, SCOTT, BRAND, CLOETE JJA,

VAN HEERDEN AJA

HEARD :

21 NOVEMBER 2003

DELIVERED :
28 NOVEMBER 2003

Summary:  Regulation 2(1)(c) contained in Government Gazette 17939 of 25 April
1997 and made in terms of s 26 of the Road Accident Fund Act 56 of 1996, interpreted,
held to be peremptory and held not ultra vires.
_________________________________________________________

JUDGMENT

CLOETE JA

CLOETE JA
[1] This appeal raises three questions: the meaning of the regulation
made in terms of the Road Accident Fund Act, 56 of 1996 (‘the Act’) which
requires a person injured in a ‘hit and run’ motor vehicle accident to
furnish an affidavit to the police; whether that regulation is peremptory;
and if it is, whether it is ultra vires.
[2] The obligation to provide compensation imposed on the Road
Accident Fund (‘the Fund’) or an agent is contained in s 17(1) of the Act
which 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.’

It is immediately apparent that a distinction is drawn between the situation
where the identity of the owner or driver has been established and the
situation where the identity of neither has been established. In the former
case, the liability of the Fund or an agent is stated to be ‘subject to this Act’
and in the latter, ‘subject to any regulation made under s 26’.
[3] Section 26 in turn provides inter alia─
‘(1)
The Minister shall or may make regulations to prescribe any matter which in
terms of this Act shall or maybe prescribed or which may be necessary or expedient to
prescribe in order to achieve or promote the object of this Act.’
[4] The regulation at issue in the present appeal is regulation 2(1)(c)
contained in Government Gazette 17939 of 25 April 1997. It provides:
‘2(1) In the case of any claim for compensation referred to in s 17(1)(b) of the Act, the
Fund shall not be liable to compensate any third party unless─

(c)
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’.
[5] In the present matter the respondent, as plaintiff, instituted an action
for compensation against the appellant, as defendant, for damages for
injuries sustained in an accident as contemplated in s 17(1)(b) of the Act.
The appellant delivered a special plea alleging non-compliance by the
respondent with regulation 2(1)(c). The respondent replicated that he had
complied with the provisions of the regulation; alternatively, that he had
substantially complied therewith; and further alternatively, that the

provisions of the regulation were ultra vires the Act. The Court a quo (De
Vos J) dismissed the special plea. The present appeal is with the leave of
that Court.
[6] The regulation is not a model of clarity. The difficulty is occasioned
by the double qualifications ‘if reasonably possible’ and ‘after being in a
position to do so’. In order to give meaning to both phrases one has to
envisage the situation where the claimant is in a position to submit an
affidavit but it is not reasonably possible for this to be done ─ otherwise
the two phrases would be synonymous and such a construction would
offend against the trite principle of statutory interpretation which strives to
avoid tautology.
[7] If a claimant is physically or mentally incapable of making an
affidavit, it cannot be said that he or she is in a position to do so. He or she
would also have to be in possession of the facts which the affidavit has to
contain: what is required is an affidavit ‘in which particulars of the
occurrence concerned were fully set out’. Once the claimant is in a
position to make the affidavit, the fourteen-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 than fourteen 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 fourteen-day period. If so, the Fund will incur

no liability. If not, the fourteen-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 fourteen-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. Against this background I turn
to the facts of the present matter.
[8] The accident occurred on 17 November 1998 on the Springs/Kwa
Thema Road when a motor vehicle of which the identity of neither the
owner nor driver are known collided with the respondent, who was a
pedestrian. The respondent was taken from the scene to various hospitals
where he remained for between five and six weeks. During the time he
was in hospital the respondent was visited by a policeman to whom he
orally gave details of the accident. In February 1999 the respondent went
to the Springs police station to ascertain whether the accident had been
reported. It had not. He subsequently met one Joshua Khoza, an
ex-policeman who described himself in evidence as an ‘assessor’, who
took a statement from him and accompanied him to the Delmas police
station where the statement was sworn to before a commissioner of oaths
on 28 February 2000. That affidavit was handed by the respondent to his
attorney. The respondent deposed to a second affidavit on 14 November

2000 which his attorney forwarded to the appellant with his claim for
compensation, and a third affidavit on 29 August 2002, i.e. shortly before
the trial commenced, in which he formally reported the accident to the
police.
[9] On these facts it is plain that the respondent was in a position, in the
sense discussed above, to submit the affidavit required by the regulation
to the police whilst he was still in hospital, and that it was reasonably
possible for him to have done so at the latest in February 1999. It is also
plain that it was only on 29 August 2002 that an affidavit was submitted to
the police: the first affidavit was sworn to at a police station, but not left
there and it was accordingly not ‘submitted’, i.e. furnished or provided for
their consideration, to the police ─ the policeman concerned merely
acted as a commissioner of oaths; and the second affidavit was not even
sworn to at a police station, much less submitted to the police ─ it was
sent to the appellant.
[10] The Court below reasoned as follows:
‘[M]yns insiens lê die antwoord daarin dat nie gesê kan word dat die eiser in ‘n posisie
was om ‘n beëdigde verklaring af te lê alvorens hy vasgestel het dat so ‘n verklaring
wel afgelê moet word nie. Die betekenis van “posisie” soos hier gebruik sluit in al die
omstandighede waarin ‘n mens jou bevind. Dit sou sekerlik insluit die feit dat ‘n
persoon moet wéét dat so ‘n verklaring afgelê moet word, andersins kan tog nie
geargumenteer word dat die persoon in ‘n posisie was om die verklaring af te lê nie.

Een van die omstandighede wat dus in ag geneem moet word wanneer bepaal moet
word of ‘n persoon in sodanige posisie is, is om na die feitlike kennis van die eiser te
kyk. In die onderhawige geval is dit nie betwis dat die eiser nooit bewus was van die
feit dat so ‘n verklaring afgelê moet word nie.’
I respectfully disagree. Harms JA stated in Mbatha v Multilateral Motor
Vehicle Accidents Fund 1997 (3) SA 713 (SCA) at 718H─I:
‘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….’
The purpose of the regulation is to reduce these problems. If the
regulation is interpreted to require subjective knowledge of the provisions
of the regulation on the part of the claimant before the obligation to furnish
the affidavit arises, this purpose would be defeated.
[11] That brings me to the question whether the regulation is peremptory.
It clearly is. It provides a penalty for non-compliance, namely, the Fund
incurs no liability to the claimant. That is decisive. In Nkisimane & Others v
Santam Insurance Co Limited 1978 (2) SA 430 (A) this Court considered
whether the provisions of s 25(1) of the Compulsory Motor Vehicle
Insurance Act were peremptory. That section provided that a claim for
compensation had to be set out in the prescribed manner on a prescribed
form sent or delivered to the authorised insurer liable to pay it. Section
25(2) provided that no claim was enforceable by legal proceedings before
ninety days had expired from the date on which the claim was so sent or

delivered. Section 24(1) fixed the period of prescription of a claim and
provided that prescription would not run during the ninety-day period.
Trollip JA held in regard to s 25(1) at 434H─in fine:
‘Moreover ─ and this is a decisive factor in rendering it peremptory (see Sutter’s case
supra at 174) ─ an effective sanction for non-compliance is provided in ss 25(2) and
24(1). They in effect enact that, unless the requirement is complied with, the claim
cannot be enforced by legal proceedings, the running of prescription is not suspended,
and the claim will ultimately become prescribed. Consequently counsel were right in
treating this requirement as being peremptory.’
[12] The next question which arises for decision is whether the
regulation is ultra vires. In Padongelukkefonds (voorheen Multilaterale
Motorvoertuigongelukkefonds) v Prinsloo 1999 (3) SA 569 (SCA) this
Court referred inter alia to regulation 3(1)(a)(iii) of the regulations
contained in Government Gazette 12151 of 27 October 1989 and made in
terms of s 6 of the Multilateral Motor Vehicle Accidents Fund Act 93 of
1989. That regulation was in identical terms to the regulation in question in
the present appeal. The Court said obiter at 576B─C that the regulation
‘is prosesregtelik van aard en het betrekking op die voorlegging en
voortsetting van eise (vgl Mbatha se saak supra op 718F), nie op die
bepaling van aanspreeklikheid nie’ and accordingly appeared to give
effect to the Agreement establishing a Multilateral Motor Vehicle
Accidents Fund, which was the law then applicable to motor vehicle

accidents by virtue of Act 93 of 1989. In the passage in Mbatha mentioned
by the Court in coming to that conclusion, Harms JA referred to ‘the
general rule that the right to prescribe time limits within which procedural
acts may be done is inherent in the right to regulate.’
[13] Harms JA dealt in Mbatha with what he described as ‘a rather
sweeping statement’ by Goldblatt J in Zeem v Mutual & Federal Insurance
Company Limited 1996 (4) SA 476 (W) at 482D─F to the effect that the
intention of the Legislature could never have been to give the Minister the
right to prevent injured parties from claiming and recovering damages if
they failed timeously to file certain documents. The learned judge of
appeal said at 718F─G:
‘If Goldblatt J were correct, it would in the present case mean that no conditions for the
liability of the Fund could have been prescribed. Since it is inherent in a time limit that
a failure to comply therewith leads to the loss of the relevant right, any time limit would
have been ultra vires.’
[14] In Bezuidenhout v Road Accident Fund [2003] 3 All SA 249 (SCA)
Vivier JA said (para [12]):
‘There is good reason for the provision in section 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 718H, 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 to facilitate proof would thus fall within
the power to regulate. But these would be truly incidental or ancillary to the object of
the Act.’
[15] There can be no doubt in view of the approach adopted in the three
judgments of this Court to which I have referred ─ Mbatha, Prinsloo and
Bezuidenhout ─ that the regulation in question in this appeal is not ultra
vires. It is regulatory in nature, designed to eliminate fraud or facilitate
proof. It stands in contra-distinction to the regulations made under the
Multilateral Motor Vehicle Accidents Fund Act and the present Act which
required that the unidentified motor vehicle had to make physical contact
with the injured person, the deceased or anything which caused the injury
or death. Those regulations were held to be ultra vires, in respectively,
Prinsloo and Bezuidenhout because they ran contrary to the intention of
the Legislature, namely, to give the greatest possible protection to victims
of the negligent driving of motor vehicles (Prinsloo at 573I/J─574D and
575I─576A; Bezuidenhout para [11]). It follows from the conclusion
reached in this paragraph that Makwetlane v Road Accident Fund [2003]
JOL 10428 (W) was wrongly decided and it is overruled.
[16] Subject to what is said in the next paragraph, the effect of the
regulation is to deprive a claimant such as the respondent of a valid claim
in the event of non-compliance with its provisions. Indeed, 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.
Nevertheless, it must be born in mind that, as was pointed out in Mbatha
at 718I, whilst in the identified vehicle case the claim against the Fund or
an agent lies instead of the claim against the wrongdoer, the claimant in a
case such as the present is given an enforceable right in a case where
there otherwise would not have been any.
[17] The conclusions reached above do not necessarily put an end to
this matter however. The plaintiff did submit a claim to the defendant as
required by s 24(1) of the Act. Section 24(5) provides:
‘If the Fund or the agent does not, within 60 days from the date on which a claim was
sent by registered post or delivered by hand to the Fund or such agent as
contemplated in subsection (1), object to the validity thereof, the claim shall be
deemed to be valid in law in all respects.’
It may be that this section could provide an answer to the special plea.
Counsel were unable to make considered submissions on the law and the
facts are not before the Court. The defendant’s counsel had no objection
to leave being granted to the plaintiff to amend his replication, if so
advised, to place reliance on s 24(5). That course commends itself for
otherwise the plaintiff may be done an injustice. At the same time the
order which this Court makes must provide for the eventuality that the
plaintiff does not amend his replication so, in effect, conceding the special
plea.

[18] I make the following order:
1.
The appeal succeeds, with costs. The order of the Court below is

set aside and the following order substituted therefor:
‘(a)
The plaintiff is given leave to deliver an amendment to his replication

to raise the provisions of s 24(5) of the Act in answer to the special

plea within 15 days.
(b)
If the amendment contemplated in paragraph (a) is not delivered

timeously or within such further period as this Court might

allow on good cause shown, the plaintiff’s claim is dismissed with

costs.
(c)
The plaintiff is ordered to pay the costs of the hearing on the special

plea.’
2.
The period of 15 days referred to above shall run from the date of

this order.

____________________

T D CLOETE

JUDGE

SUPREME COURT OF APPEAL

Concur:
Harms JA
Scott JA
Brand JA
Van Heerden AJA