DA Silva v Road Accident Fund and Another

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen J and Zondo J
• Judgment Date: 19 June 2014
• Hearing Date: 19 June 2014
• Docket Number: CCT 29/14 [2014] ZACC 21
• Citation: 2014 (5) SA 573 (CC)
• Court: Constitutional Court
• Counsel: A Anandale SC (with Z Pretorius) for the applicant. S Budlender for the respondents.

DA Silva v Road Accident Fund and Another
2014 (5) SA 573 (CC)

2014 (5) SA p573

Citation	2014 (5) SA 573 (CC)
Case No	CCT 29/14; [2014] ZACC 21
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen J and Zondo J
Heard	June 19, 2014
Judgment	June 19, 2014
Counsel	A Anandale SC (with Z Pretorius) for the applicant.; S Budlender for the respondents.

Flynote : Sleutelwoorde G

Motor-vehicle accident — Compensation — Claim against Road Accident H Fund — Exclusions — Exclusion of claim where passenger member of driver's household or owing duty of support — Since repealed but still applying to claims arising before effective date — Constitutionality — As spouses and children most likely to be excluded from Act's protection differentiation amounting to unfair discrimination on basis of marital status and age — High court order invalidating provision confirmed — Pending claims to be I subject to transitional provisions — Road Accident Fund Act 56 of 1996 (prior to amendment), s 19(b)(ii).

Headnote : Kopnota

Ms Da Silva was severely injured in a collision while a passenger in a motor vehicle driven by her husband. It was common cause that the sole cause of the accident was a collision with a horse. Her claim for damages from the J

2014 (5) SA p574

A Road Accident Fund (RAF) was precluded by s 19(b)(ii) of the old Act. [*] The effect of the provision was to exclude claims where a passenger was a member of the driver's household or owed the driver a duty of support. Although since repealed, the section still applied to all claims — as in the case of Da Silva — where the cause of action arose before the effective date (1 August 2008). Da Silva challenged the constitutionality of the provision B on grounds that it violated her right to equality. The RAF and the minister did not object to the order sought. The Free State High Court upheld her challenge declaring the section inconsistent with the Constitution and invalid. On application to the Constitutional Court for confirmation —

Held: The provision differentiated between categories of people, namely those who stood in a close familial relationship with the driver and those who did C not. Spouses and children were the most likely to be excluded from the Act's protection and this amounted to indirect discrimination on the basis of marital status and age. As this discrimination was on grounds listed in s 9(3) of the Constitution, it was presumptively unfair. Neither the RAF nor the minister had sought to rebut this and there was nothing further to justify any rebuttal. High court order confirmed. (Paragraph [8] at 577D – E.)

D As to the question of remedy: The order was not one of unlimited retrospectivity — it restricted claims to those that were pending and had not yet prescribed. Those claims would be subject to the provisions of the Transitional Act. [†] (Paragraph [10] at 578A – B.)

Cases Considered

Annotations

Case law E

Da Silva v Road Accident Fund and Another [2013] ZAFSHC 188: confirmed on appeal

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): dictum in para [54] applied

Mvumvu and Others v Minister for Transport and Another 2011 (2) SA 473 (CC) (2011 (5) BCLR 488; [2011] ZACC 1): considered F

Phillips and Another v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2003 (3) SA 345 (CC) (2003 (1) SACR 425; 2003 (4) BCLR 357; [2003] ZACC 1): referred to.

Statutes Considered

Statutes

G The Road Accident Fund Act 56 of 1996, s 19(b)(ii) (prior to 2008 amendment): see Juta's Statutes of South Africa 2005/06 vol 4 at 2-172.

Case Information

A Annandale SC (with Z Pretorius) for the applicant.

S Budlender for the respondents.

H An application for confirmation of order of constitutional invalidity granted by Free State High Court, Bloemfontein.

Order

1.

The order made by the Free State High Court, Bloemfontein, is confirmed.

2.

I The respondents are ordered to pay the applicant's costs, including the costs of two counsel.

2014 (5) SA p575

Judgment

Froneman J (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, A Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen J and Zondo J concurring):

[1] The applicant (Ms Da Silva) seeks confirmation of an order of constitutional invalidity granted by the Free State High Court, B Bloemfontein (high court). [1] The respondents, the Road Accident Fund (RAF) and the minister, do not oppose the relief. [2] This court must nevertheless make its own determination of the constitutional validity of the provision at stake. [3]

[2] The provision declared invalid is s 19(b)(ii) of the Road Accident Fund Act [4] as it stood before 1 August 2008 (old Act). It reads in C relevant part:

'The Fund or an agent shall not be obliged to compensate any person in terms of section 17 for any loss or damage —

. . .

(b)

suffered as a result of bodily injury to or death of any person who, D at the time of the occurrence which caused that injury or death —

. . .

(ii)...