Case No 413/98
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter of
ANTONICA MOLOI
1st Appellant
DINAH GAMBU
2nd Appellant
EVELINAH NGWENYA
3rd Appellant
and
ROAD ACCIDENT FUND
Respondent
CORAM:         Smalberger, Vivier, Howie, Streicher JJA et Farlam AJA
DATE OF HEARING:   12 September 2000
DATE OF JUDGMENT:   29 September 2000
Multilateral Motor Vehicle Accidents Regulations, 1989 - Regulation
3(2)(a)(i) - Validity of
J U D G M E N T
/FARLAM AJA:. . .

FARLAM AJA:
[1] This is an appeal from a judgment of Claassen J sitting in the
Witwatersrand Local Division of the High Court, who upheld a special plea
by the defendant (respondent) to the  particulars of claim of the plaintiffs
(appellants) and dismissed their claims with costs.  In what follows I shall
refer to the parties as they were described in the Court a quo.
[2] The question for decision in this case is whether a minor’s claim
arising under article  40 of the Agreement establishing a Multilateral Motor
Vehicle Accidents Fund (which is set out in the Schedule to the Multilateral
Motor Vehicle Accidents Fund Act 93 of 1989 (as amended)   prescribes on
the expiry of a two year period after the claim arose in a case where the
motor vehicle concerned was unidentified and no claim for compensation for
loss or damage suffered by the minor was delivered to the Multilateral Motor
Vehicle Accidents Fund within such  period.   (In what follows I shall refer
to the Agreement set out in the Schedule to Act 93 of 1989 as “the
Agreement” and to the Multilateral Motor Vehicle Accidents Fund as “the
Fund”.)
[3] Each  of  the  three  plaintiffs in this matter instituted action
against the Fund  in her capacity as mother and natural guardian of her minor

child, who was allegedly injured in a collision with an unidentified motor
vehicle which was negligently driven by some person unknown.
[4] The defendant filed a special plea essentially raising the defence
that the plaintiffs’ claims had prescribed, as well as a plea on the merits.
[5] Prior to the hearing of the matter in the Court a quo the parties
agreed that the issues raised by the defendant’s special plea and the
plaintiffs’ replication thereto should be dealt with pursuant to a stated case
in terms of Rule 33(1) of the Uniform Rules of Court.
[6] The case stated by them reads as follows:
“1.
The three Plaintiffs act in this matter in their
representative capacity as mothers and guardians of three
minor children who Plaintiffs allege were injured in a
motor vehicle collision which occurred on 30 September
1994.
2.
The Plaintiffs claim compensation in terms of the
provisions of the Multilateral Motor Vehicle Accidents
Fund Act No. 93 of 1989.
3.
The Plaintiffs’ minor children were injured as a result of
a collision with a motor vehicle in respect of which
neither the identity of the owner nor driver can be
established.
4.
The Plaintiffs’ claims for compensation were delivered
to the Defendant in October, alternatively November

1996.
5.
Defendant maintains that by virtue of the provisions of
Regulation 3(2)(a)(i) Plaintiffs’ claims for compensation
had to be delivered to the Defendant within two years
from the date on which the claim arose and furthermore
that by virtue of the provisions of Regulation 3(2)(a)(ii)
the provisions of Regulation 3(2)(a)(i) apply to all third
parties and Claimants irrespective of whether they are
subject to any legal disability.
6.
Plaintiffs admit that the claim forms were delivered to the
Defendant outside the two year time period from which
the claims arose.
7.
Plaintiffs maintain, however,  that insofar as the
provisions of Regulation 3 provide that prescription runs
against minors, the provisions of the regulation are ultra
vires.
8.
Plaintiffs contend furthermore that the provisions of the
Prescription Act No. 68 of 1969 and in particular
Section 13 and Section 16 thereof are applicable to the
present case, their effect being that prescription does not
run against the minors.
9.
The sole question for decision therefore is whether the
minors’ claims have become prescribed.”
[7] In the Agreement the Multilateral Motor Vehicle Accidents Fund
is called the “MMF”.   Chapter XII of the Agreement, which is headed
“LIABILITY OF MMF AND APPOINTED AGENTS” commences with

article 40, which reads as follows:
“The MMF or its appointed agent, as the case may be, shall
subject to the provisions of this Agreement be obliged to
compensate any person  whomsoever (in this Agreement called
the third party) for any loss or damage which the third party has
suffered as a result of –
(a)
any bodily injury to himself;
(b)
the death of or any bodily injury to any person,
in either case caused by or arising out of the driving of a motor
vehicle by any person whomsoever at any place within the area
of jurisdiction of the members of the MMF, if the injury or
death is due to the negligence or other unlawful act of the
person who drove the motor vehicle (in this Agreement called
the driver) or of the owner of the motor vehicle or his servant
in the execution of his duty.”
[8] Section 6(1) of Act 93 of 1989 empowers the Minister of
Transport Affairs  to make regulations to give effect to any provision of the
Agreement.   The regulations made by the Minister are referred to in the
definition of “this Act” which is contained in section  1 of the Act and which
reads as follows:
“In this Act, unless the context otherwise indicates –
. . .

‘this Act’ includes the regulations made under section 6.”
[9] Regulation 3(2)(a)(i) and (ii), to which reference is made in the
stated case, reads as follows:
“(2)   The liability of the MMF in respect of claims which
arise in terms of this regulation shall be subject to the following
further conditions:
(a)   (i)
A claim for compensation for loss or damage
suffered by the claimant shall be delivered to the
MMF within two years from the date upon which
the claim arose mutatis mutandis in accordance
with the provisions of article 62 of the Agreement.
(ii
The provisions of subparagraph (i) shall also
apply to all third parties and claimants,
irrespective of whether they are subject to any
legal disability.”
[10] As can be seen from paragraph 8 of the stated case the plaintiffs
rely on the provisions of sections 13 and 16 of the Prescription Act 68 of
1969 in order to repel the defendant’s special plea.   These sections read as
follows, as far as is material:
“13 (1)  If –

(a)
the creditor is a minor . . .
and

(i)
the relevant period of prescription would, but for
the provisions of this subsection, be completed
before or on, or within one year after, the day on
which the relevant impediment referred to in
paragraph (a) . . . has ceased to exist,

the period of prescription shall not be completed before
a year has elapsed after the day referred to in paragraph
(i).”
“16 (1). . .[T]he provisions of this chapter [i e, Chapter III,
which deals with prescription of debts and which contains
section 13] shall, save in so far as they are inconsistent with the
provisions of any Act of Parliament which prescribes a
specified period within which a claim is to be made or an action
is to be instituted in respect of a debt or imposes conditions on
the institution of an action for the recovery of a debt, apply  to
any debt arising after the commencement of this Act.”
[11] In his judgment upholding the special plea Claassen J dismissed
the plaintiffs’ contention that regulation 3,  in so far as it provided that
prescription  runs against minors,  was ultra vires.   He did  so, largely on the
basis that the ratio in the decision of this Court in Mbatha v Multilateral
Motor Vehicle Accidents Fund, 1997 (3) SA 713 (SCA), in which it was

held that regulation 3 (2) (a) (i) is intra vires  section 6 of Act 93 of 1989,
must apply with equal force in relation to regulation 3 (2) (a) (ii).
[12] Claassen J dealt with the plaintiffs’ contention that sections 13
and 16 of the Prescription Act apply (with the result that prescription does
not run in respect of a minor’s claim in a case involving an unidentified
vehicle) as follows:
“The short answer to Mr Smith’s argument [Mr Smith
appeared for the plaintiffs in the court a quo] is that the
regulations form part of the Act by virtue of the definition in
Section 1 of the Act where the words ‘this Act’ are defined as
including ‘the regulations made under Section 6’.  It is common
cause that the particular regulations concerned, are made under
Section 6 and thus form part of the Act.   In such instance, it
is, in my view, futile to argue that the Prescription Act applies
because the ‘Act and the Agreement’ do not stipulate anything
in regard to prescription periods applicable to claimants under
legal disabilities in respect of unidentified vehicle cases.   The
fact of the matter is that the ‘regulations’ do stipulate such
periods and these regulations are by definition deemed to be
part of the Act.   As such, the provisions of the Prescription
Act are ousted.   Furthermore, the provisions in the
Prescription Act providing for prescription not to run against
minors, are directly in conflict with the provisions of Regulation

3 (2) (a) (ii) and (c) (ii) of the MMF Act.   For the above
reasons the arguments of Mr Smith cannot be entertained.”
[13] It is convenient to deal with this latter point first.  Although
section 16 of the Prescription Act is not drafted as clearly as it might be it is
reasonably plain that what is intended is that the provisions of Chapter III will
apply to all debts save where they are ousted by the provisions of an Act of
Parliament which is inconsistent and then only to the extent of the
inconsistency.   The inconsistent provisions which have to be included in an
Act of Parliament and which will oust some or all of the provisions of
Chapter III are provisions which (a) prescribe a specified period within
which a claim is to be made;      (b) prescribe a specified period within which
an action is to be instituted in respect of a debt or (c) impose conditions on
the institution of an action for the recovery of a debt.   Regulation 3(2)(a) is
a provision falling under (c) above because it purports to impose conditions
on the institution of an action.   It follows from the plain terms of section 16
that unless such provision  has the status of an Act of Parliament it is invalid.
[14] I do not agree that the provisions of the Prescription Act are

ousted because of the fact that in section 1 of Act 93 of 1989 the words
“this Act” are defined so as to include the regulations made under section 6.
It is clear from the introductory words to section 1 that the statutory
definition of “this Act” applies in the interpretation of Act 93 of 1989 itself.
There is no substantive elevation of the regulations to the status of an Act
of Parliament.   It is instructive in this regard to compare  how the regulations
are dealt with in section 1 with what is said in section 2(1) about the
Agreement, viz:
“The Agreement . . . shall, subject to the provisions of this Act,
have the force of law and apply in the Republic of South
Africa, as if it were an Act of Parliament of the Republic of
South Africa.”   (The emphasis is mine.)
[15] In other words it is clear that the Agreement has been expressly
given the status of an Act of Parliament and it was accordingly accepted by
this Court in Road Accident Fund v Smith N O 1999 (1) SA 92 (SCA) that

provisions in the Agreement dealing with prescription oust inconsistent
provisions of the Prescription Act in terms of section 16 thereof.
[16] If  Parliament had intended the regulations made under section
6 of Act 93 of 1989 also to have that status so as to oust inconsistent
provisions of the Prescription Act, I would have expected a similar provision
to that contained in section 2 to have been included as regards the
regulations.
[17] In the absence of such a provision it cannot be held  in my view
that the regulations are to be regarded as included in Act 93 of 1989 for any
purpose  other than interpreting the expression “this Act” therein and they do
not have the status of an Act of Parliament for any other purpose.    The
result is  that they cannot oust the provisions of Chapter III of the
Prescription Act in the case of a minor’s claim in terms of the Agreement
where such claim arises out of the driving of a motor vehicle of which the
identity of neither the owner nor the driver can be ascertained.  It follows that
the plaintiffs’ contention as set out in paragraph 8 of the stated case should

in my view have been upheld.
[18] Mr Wessels, who appeared with Mr van Vuuren on behalf of
the respondent, submitted that even if the regulations did not amount to an
Act of Parliament for the purposes of section 16 of the Prescription Act, the
plaintiffs’ appeal should still fail.  This argument rested on the premise that
the condition contained in regulation 3(2)(a)(i) was a condition in the proper
sense of that word.    He contended that as the rights  conferred on the
minors in this case were conditional rights only,   no debts,  within the
meaning of the Prescription Act, arose in respect of which prescription could
run until the condition to which they were subject had been fulfilled.    After
the expiry of the two year period referred to in regulation 3 (2) (a) (i), he
submitted,   no claims for compensation having been delivered to the Fund
on behalf of the minors concerned and the condition having thus failed, the
conditional rights which the minors had  against the Fund fell away.
[19] The reason these rights fell away was not, he contended,
because they had prescribed but because, no unconditional debt having

arisen,  prescription never ran at all and the extinction of the minors’
conditional rights simply occurred when the condition on which they were
dependent failed on the expiry of the two year period.
[20] In order for this contention to succeed one has to be satisfied
as  to two things: (1) that the “condition” referred to in regulation 3(2)(a)(i)
is a suspensive condition properly so-called: i e, an uncertain future event
pending the happening of which the minors concerned have no enforceable
rights against the Fund, and (2) that the Minister had the power under section
6 of the Act to impose the condition contended for.
[21] As to the first point it is instructive to have regard to the
decision of this Court in the Mbatha case supra.   Although one has
difficulty with the result of the case, for a reason which I shall set out below,
it considered the “condition” referred to in regulation 3(2)(a)(ii) to be a
prescriptive period and not a condition properly so-called (see 716C where
reference is made to a so-called condition and 720A  and E where the two
year period imposed by regulation 3(2)(a)(i) is referred to in terms as a

prescriptive period).
[22] I said earlier that one has difficulty with the result to which
the Court came in the Mbatha case, supra.   This is because counsel for the
appellant in that case did not rely on section 16 of the Prescription Act and
no consideration was given to the aspect of the matter dealt with above.
[23] As to the second  point, an analogous argument was considered
by
this
Court
in
Padongelukkefonds
(Voorheen
Multilaterale
Motorvoertuigongelukkefonds) v Prinsloo 1999 (3) SA 569 (SCA), in which
it was held that regulation 3(1)(a)(v), which provided that the Fund would not
be liable, in a case involving an unidentified motor vehicle where there was
no physical contact between the vehicle and the injured person or the
deceased or anything which caused the injuries or death, was ultra vires.
[24] The Court’s  reasons for coming to this conclusion appear
from the following passage (at 574 F - 575A):
“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 ongeïdentifiseerde voertuig fisiese kontak moet wees,
vind, soos reeds aangedui, nie weerklank in òf die Wet òf die

Ooreenkoms nie.  Dit stel `n beperking op aanspreeklikhheid
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
ongemagtigde 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 aanspreeklikhheidsuitsluiting by wyse van
regulasie neer te lê nie’ (sien die gerapporteerde uitspraak op
314e-f).   Die plaas van `n andersins ongemagtigde 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.”
[25] In my view, by parity of reasoning, it is clear that the Minister
was not empowered by section 6 of Act 93 of 1989 to endeavour to convert
the unconditional liability created by article 40 into a conditional liability.

[26] I do not think that the position is altered by the fact that
section   2(1) of the 1989 Act provides that the Agreement has the force of
law “subject  to the provisions of this Act” (which includes the regulations).
The purpose of the Agreement, which was an agreement between the
Government of the Republic of South Africa and the Governments of the
then independent (or quasi-independent) TBVC states, was clearly to
introduce a uniform system in terms of which persons who had suffered loss
arising out of the driving of motor vehicles in the Republic of South Africa
or any of the TBVC states through personal injuries or the deaths of
persons who owed them a duty of support would be able to recover
compensation from the Fund or one of its appointed agents.   To this end
article 40 provided that the Fund or its agents would be liable to persons
who suffered such loss if the drivers or owners of the motor vehicles in
question were negligent.
[27] The purpose of creating a uniform system of liability throughout
the Republic of South Africa and the TBVC states would be defeated if the

Minister were able by regulations applicable only in the territory of one of the
participating states to cut down or render conditional the unconditional
liability provided for in article 40 of the Agreement.   This provides a further
reason for holding that it could never have been the intention of Parliament
when it passed the 1989 Act to empower the Minister to render the
unconditional liability created by article 40 of the Agreement conditional.
[28] It follows for the reasons I have given that Mr Wessels’s
alternative submission must also be rejected.
The following order is made:
1.
The appeal is upheld with costs, including  those occasioned
by the employment of two counsel.
2.
The order of the Court a quo is altered to read:
“Defendant’s special plea is dismissed with costs”.

__________________
I G FARLAM
SMALBERGER   JA)
VIVIER                 JA)
HOWIE                 JA)     CONCUR

STREICHER         JA)
In this regard the question arises whether it cannot  be argued that the
Mbatha case  supra established that the Minister did have the power
contended for and that he accordingly validly imposed the condition on the
non-fulfilment of which Mr Wessels relies.   The difficulty one has with the
Mbatha decision is that counsel for the appellant in that case did not rely on
section 16 of the Prescription Act and no consideration was given to the
aspect of the matter dealt with above.   The court was concerned with the
question as to whether the Minister had the power under section 6 of Act 93
of 1989 to prescribe time limits within which procedural acts had to be done.
Although it is said (at 716 C) that in cases involving unidentified vehicles
“the regulation subjects the liability of the Fund to a so-called condition”,
later in the judgment the two year period imposed by regulation 3 (2) (a) (i)
is referred to as a prescriptive period (see 720 A and E).   The Mbatha
decision can accordingly afford no support for the contention that section
6 of the 1989 Act empowered the Minister to reduce the ambit of Article 40
of the Agreement by making the rights conferred thereby on injured persons
conditional on their filing a claim in the period laid down in regulation 3 (2)
(a) (i).
In Padongelukkefonds (voorheen Multilaterale Motorvoertuig-
ongelukkefonds) v Prinsloo 1999 (3) SA 569 (SCA) this Court held that
regulation 3 (1)(a) (v) which provided that the Fund would not be liable in an
unidentified vehicle case, where there was no physical contact between the
unidentified vehicle and the injured person was ultra vires.
The Court’s reasons for coming to this conclusion appear from
the following passage (at 573 I - 575 A:
“Artikel 40 is baie wyd in omvang.   Dit dek alle gevalle van
verlies of skade soos beoog wat gely is as gevolg van die
nalatige bestuur van `n voertuig op enige plek in die regsgebied
van die lede van die MMF, ongeag of die bestuurder of eienaar

van die betrokke voertuig geïdentifiseer kan word al dan nie (SA
Eagle Insurance Co Ltd v Pretorius 1998 (2) SA 656 (HHA)
op 660H - 661B).   Dit skep dus aanspreeklikheid selfs in
gevalle waar daar andersins weens die onvermoë van `n eiser
om `n verweerder te identifiseer geen praktiese remedie sou
wees nie.  Die artikel is dus volkome in ooreenstemming met
wat nog altyd beskou is as die algemene oogmerk van die
Wetgewer in wetgewing van hierdie aard, naamlik om die
wydste moontlike beskerming aan persone te verleen wat verlies
of skade gely het soos in die artikel beoog (Aetna Insurance
Co v Minister of Justice 1960 (3) SA 273 (A) op 286E-F).   Die
artikel stel geen vereiste van fisiese kontak as `n voorwaarde vir
aanspreeklikheid nie.  Dit is trouens gemene saak dat nêrens in
die Wet of die Ooreenkoms so `n vereiste voorkom nie,
ondanks die feit dat art 48 van die Ooreenkoms  uitdruklik
voorsiening maak vir die uitsluiting van aanspreeklikheid in
sekere gevalle.   Artikel 40 sluit dus nie aanspreeklikheid uit in
die geval waar `n ongeïdentifiseerde voertuig nie in fisiese
kontak was met `n beseerde of `n oorledene, of die voertuig
waarin hy of sy gereis het nie.
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’ (my
beklemtoning).   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 718
C).
“Die bepaling in reg 3(1)(a)(v) dat, as voorvereiste vir
aanspreekilikheid aan die kant van die MMF, daar in die geval
van ‘n ongeïdentifiseerde voertuig fisiese kontak moet wees,
vind, soos reeds aangedui, nie weerklank in of die Wet of 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
ongemagtigde 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 bevoegheid om aanspreeklikhheidsuitsluiting by wyse van
regulasie neer te lê nie’ (sien die gerapporteerde uitspraak op
314e-f).   Die plaas van `n andersins  ongemagtigde beperking
op die MMJF se aanspreeklikheid is ook nie redelikerwyse
diensbaar (`reasonably incidental`) aan die Minister se verlende
bevoeghede nie.   Gevolglik het die Hof a quo myns insiens
tereg bevind dat reg 3(1)(a)(v) ultra vires is.”
In my view it is clear that from the passaage which I have
quoted from the Prinsloo case that the Minister was not empowered by
section 6 of Act 93 of 1989 to render the unconditional rights conferred by
Article 40 conditional.  It follows that Mr Wessels’s alternative submission
cannot be upheld.
The following order is made:
1.
The appeal is upheld with costs, including  those occasioned
by the employment of two counsel;

2.
The order of the Court a quo is set aside and substituted
therefor is the following:
“Defendant’s special plea is dismissed with costs.”

_____________________
I G Farlam.