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In Legal Practitioners Indemnity Insurance Fund NPC v The Minister of Transport and The Road Accident Fund (GP) (unreported case no 26286/2020, 21-6-2021) (Janse van Nieuwenhuizen J) the Gauteng Division of the High Court, declared the provisions of regs 2(1)(b) and 2(2) of the Road Accident Fund Regulations, 2008, promulgated under the Road Accident Fund Act 56 of 1996 (the Act) to be inconsistent with the Constitution and invalid, as well as, to the extent that the regulations relate to minors and persons under curatorship, be set aside. The court also declared that s 23(2) of the Act is to be read as ‘including minors and persons under curatorship who claim in terms of s 17(1)(b) of the Act’.

In so doing the court set aside the two years’ limited period for the lodgement of Road Accident Fund (RAF) claims in respect of unidentified vehicles, as far as minors and persons under curatorship are concerned. This is an important development for attorneys undertaking RAF claims.

Unavoidably the question arises as to why only now, after a constitutional dispensation of more than 27 years prohibiting discrimination? Surely it should have been self-evident that regs 2(1)(b) and 2(2) discriminate against minors and persons under curatorship, and the requisite court application should have been lodged much earlier?

In this article the fundamental reasoning contained in the judgment, will be discussed, and an answer to the question will be proposed.

Regulation 2 and s 17(1) and other statutory provisions

Section 3 of the Act provides that ‘the object of the Fund shall be the payment of compensation in accordance with this Act for loss or damage wrongfully caused by the driving of motor vehicles’.

Section 17 of the Act limits the RAF’s liability:

‘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 … suffered as a result of any bodily injury …, caused by or arising from the driving of a motor vehicle …, 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’.

Section 23 deals with prescription of claims:

‘… the right to claim compensation under section 17 from the Fund or an agent in respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of either the driver or the owner thereof has been established, shall become prescribed upon the expiry of a period of three years from the date upon which the cause of action arose.

(2) Prescription of a claim for compensation referred to in subsection (1) shall not run against –

(a) a minor;

(b) any person detained as a patient in terms of any mental health legislation; or

(c) a person under curatorship’ (my italics).

Section 26, empowers the Minister of Transport (the Minister) to make regulations:

‘The Minister may make regulations regarding any matter that shall or may be prescribed in terms of this Act or which it is necessary or expedient to prescribe in order to achieve or promote the object of this Act.’

Regulations 2(1)(b) and 2(2) provide that:

‘(a) A claim for compensation referred to in section 17(1)(b) of the Act shall be sent or delivered to the Fund in accordance with the provisions of section 24 of the Act, within two years from the date upon which the cause of action arose.

(b) A right to claim compensation from the Fund under section 17(1)(b) of the Act in respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of neither the owner nor the driver thereof has been established, shall become prescribed upon the expiry of a period of two years from the date upon which the cause of action arose … .

…

(2) Notwithstanding anything to the contrary contained in any law a claim for compensation referred to in section 17(1)(b) of the Act shall be sent or delivered to the Fund within two years from the date upon which the cause of action arose irrespective of any legal disability to which the third party concerned may be subject.’

The applicant’s case

The applicant submitted:

• Regulation 2 discriminates unfairly between minors and persons under curatorship who sustain injuries, where the driver or owner of the motor vehicle is known, and instances where the driver or owner of the said motor vehicle is unknown.
• Minors and persons under curatorship who are the victims of negligent hit and run motorists, have a justiciable right to claim compensation for loss suffered. The imposition of the two-year prescription period infringes on their constitutional rights to seek relief for their damages before courts. The offending regulations infringe on their rights under s 34 of the Constitution to bring their claims before court in the same time frame as persons claiming in terms of s 17(1)(a).
• If a plaintiff had been unconscious for the greater part of their stay in hospital, it might have impacted on the commencement of prescription in relation to both the provisions of s 13(1)(a) of the Prescription Act 68 of 1969 (the Prescription Act), and s 23(1) of the Act, on the basis of the doctrine that the law does not require one to do the impossible. Legal disability may similarly account for the inability to lodge a claim timeously. However, the impugned regulations disregard legal disability after two years as such a reason. In effect, the impugned regulations punish the most vulnerable for not doing what may not be possible.
• The provisions of reg 2(2) legislate beyond the scope of the Act. The Minister’s powers in terms of s 26 of the Act to make regulations is limited to ‘make regulations regarding any matter that shall or may be prescribed in terms of this Act or which it is necessary or expedient to prescribe in order to achieve or promote the object of this Act.’ If, in making regulations, the Minister exceeds the powers conferred by the Act, the Minister acts ultra vires and in breach of the doctrine of legality.
• The impugned regulations do not further the purpose of the Act. They offend against the principle of legality contained in s 1(c) of the Constitution, in that the Minister was not empowered to determine, the limitation of time within which a claim may be made, or an action brought, or to impose conditions on the institution of an action, having regard to s 3 of the Act.
• The regulations are at odds with s 23 of the Act, as they provide for the prescription of claims of minors and persons under curatorship in unidentified vehicle matters. The regulations do not have the status of an Act of Parliament and cannot oust the provisions of s 23.
• The regulations offend against the principle of legality contained in s 1(c) of the Constitution, as ‘the Minister was not empowered to determine by regulation the limitation of time within which a claim may be made’ (para 71). ‘A delegate is not intended to travel wider than the object of the Legislature’ (Bezuidenhout v Road Accident Fund 2003 (6) SA 61 (SCA)). In the Minister enacting the regulations, he went wider than the object of the Act.

The respondent’s case

The Minister and the RAF submitted:

• The Minister argued that the impugned regulations do not differentiate between people or categories of people. The regulations, read together with
  s 17(1)(b), provide for a different procedure and time for the lodgement and processing of claims in unidentified vehicle cases. The differentiation is not directed at persons, but at the cause for the claim. The purpose of the two years’ time period is to eliminate fraud and facilitate proof.
• The court determined that the problem is rather that persons who do not possess full legal capacity, and who have claims under s 17(1)(b), are not afforded the same protection in terms of s 23(2) to similar persons in identified vehicle cases. The court accordingly agreed with the applicant that the differentiation does not fulfil a legitimate government purpose.
• The court pointed out that the impact of the discrimination is self-evident. A minor that sustains a serious brain injury in an identified vehicle case, will have the necessary finances to get specialised care, proper educational assistance and will be compensated for loss of earnings or earning ability. Minors and persons under curatorship in unidentified vehicle cases will forfeit these benefits and will be left to fend for themselves without any form of assistance.
• The Minister contended that once a claim has been lodged in terms of reg 2(1)(a), a claimant (claiming in terms of s 17(1)(b)) is entitled to approach a court of law.
• The court pointed out that the problem with the lodgement of claims by minors and persons under curatorship, is that they simply do not have the capacity to do so within the prescribed two year period. In the result, and due to no fault of their own, their claims will prescribe, whereas those of minors and persons under curatorship who claim under s 17(1)(a), will not.
• The Minister submitted that unlike other prescription provisions which violate the rights of access to courts, regss 2(1)(b) and 2(2) provide a substantial period for claimants to lodge their claims – a full two years after the accident. The claimant need not institute legal proceedings but is only required to lodge a claim with the RAF. Provided this is done, the claimants then have a further five years within which to institute an action against the RAF. The lodging of a claim does not require the claimant to be legally assisted. Hence, the RAF provides staff members who assist members of the public to lodge claims themselves, rather than via an attorney.
• The court found that the purported justification failed to consider that minors and persons under curatorship do not have the physical and legal capacity and/or knowledge to lodge claims on their own behalf.
• The next ground of justification involved the finances of the RAF and the fact that unidentified claims, which might be fraudulent claims, drain the funds of the RAF, to the prejudice of claimants in justified claims.
• The court criticised the RAF for not specifically addressing the impact of the claims of minors and person under curatorship, in this regard. The court indicated that one would have expected statistics in respect of this category of claimants, and the financial impact of their claims on the RAF’s financial liabilities. Although fraudulent claims are of concern, the possibility of fraudulent claims in instances where minors and persons under curatorship lodge claims in unidentified vehicle claims, could never justify the infringement of their human rights in casu.

Conclusion

The RAF Regulations in question were set aside for clear and valid reasons. The question arises why the obvious has not been obvious for more than 27 years.

The answer possibly lies in the following: Sometimes, the obvious is not so obvious, and it requires a leader to take a bold step, to point out the obvious, like was done in this matter by the applicant.

Marius van Staden BIur LLB LLM (UP) is a legal practitioner at Savage, Jooste & Adams Inc in Pretoria.

This article was first published in De Rebus in 2022 (March) DR 17.