Law Society of South Africa and Others v Minister for Transport and Another

• Jurisdiction: South Africa
• Judge: Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J, Yacoob J and Brand AJ
• Judgment Date: 25 November 2010
• Citation: 2011 (1) SA 400 (CC)
• Docket Number: CCT 38/10
• Hearing Date: 12 August 2010
• Counsel: JJ Gauntlett SC (with FB Pelser) for the first and third to tenth applicants. G Budlender SC (with N Mayosi) for the second applicant. W Trengove SC (with MR Madlanga SC and HJ de Waal) for the first respondent. S Budlender (with B Makola and N Mji) for the second respondent.
• Court: Constitutional Court

Moseneke DCJ:

Introduction F

[1] This is an application for leave to appeal against the judgment and order of the North Gauteng High Court [1] (High Court), handed down by Fabricius AJ. That court dismissed a constitutional challenge to amendments to the Road Accident Fund Act, 1996 [2] (the RAF Act). The impugned amending provisions were introduced by the Road Accident G Fund Amendment Act, 2005 [3] (amendment).

[2] Before the High Court, the applicants put up a far-reaching constitutional attack against certain provisions of the amendment and regulations made under it. They sought to have at least five legislative provisions, 25 regulations and one government notice declared H inconsistent with the Constitution and invalid. The High Court dismissed all these claims, but made no order as to costs.

[3] However, in the application for leave to appeal directly to this court, the scope of the constitutional challenge has shrunk considerably. The I

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A applicants impugn only two provisions of the amendment and one regulation. They are —

(a)

s 21, which abolishes a motor accident victim's common-law right to claim compensation from a wrongdoer for losses which are not compensable under the RAF Act;

(b)

B s 17(4)(c), which limits the amount of compensation that the Road Accident Fund (Fund) is obliged to pay for claims for loss of income or a dependant's loss of support arising from the bodily injury or death of a victim of a motor accident; and

(c)

reg 5(1), in which the Minister for Transport (Minister) has, pursuant to s 17(4B)(a) of the Act, prescribed tariffs for health C services which are to be provided to accident victims by public health establishments.

[4] The core of the constitutional challenge is that these impugned provisions viewed alone or collectively as part of the legislative scheme —

(a)

do not comply with the constitutional principle of rationality;

(b)

D unjustifiably limit at least one of the following fundamental rights: the right —

(i)

to security of the person (s 12(1));

(ii)

not to be deprived of property arbitrarily (s 25(1));

(iii)

of access to health care services (s 27(1)); and

(iv)

E to adequate remedy (s 38).

All these rights are to be viewed in the light of the duty of the State to respect, protect, promote and fulfil these rights (s 7(2)).

Parties

F [5] Before identifying the issues that fall to be determined, it may be helpful that I give a brief description of the litigants. The Law Society of South Africa (Law Society) is the first applicant. It represents some 20 000 attorneys in over 9000 law firms. Many of its members practise in the area of road accident litigation and represent the majority of G people who claim compensation under the RAF Act. They make the point that their members and their clients are adversely affected by the impugned provisions. The Law Society also says that it pursues the litigation on behalf of many clients to whom their members provide services and who could not bring the proceeding themselves. They also H claim to bring the action in the public interest, in order to procure a just and equitable legal system. The second applicant is the South African Association of Personal Injury Lawyers. Its objectives also include protecting the legal rights and interests of road accident victims. Its members too represent victims of motor vehicle accidents, on whose I behalf they act.

[6] The third applicant is the QuadPara Association of South Africa. It promotes the interests of quadriplegics, paraplegics and other people with mobility impairment, many of whom incur these conditions as a result of road accidents. Cited as the fourth applicant is the National Council for Persons with Physical Disabilities in South Africa, whose J main purpose is to advance the interests of persons with physical

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disability and to eradicate legal impediments operating to the detriment A of its members or people with physical disability.

[7] The first to the fourth applicants are voluntary associations with perpetual succession. All four have the capacity to institute legal proceedings in their own name and have mounted the present challenge in their own right, on behalf of their members and to advance the rights B and interests of future accident victims, and in the public interest.

[8] The fifth to the eleventh applicants are individuals who have been injured in road accidents after the impugned provisions came into operation. All of them assert that they will be materially prejudiced C should the provisions remain in force because they deprive accident victims of adequate compensation from the Fund, whilst granting wrongdoers complete immunity from civil liability for their unlawful conduct.

[9] The first respondent is the national Minister for Transport. He is D cited as the member of the national executive responsible for the administration of the RAF Act. He thus has a direct and substantial interest in the outcome of the appeal. The second respondent is the Fund. It is the statutory body established under the RAF Act to administer the compensation system envisioned by national legislation.

Issues E

[10] It may be readily gathered from the preceding introduction that these issues arise for decision —

(a)

whether it is in the interests of justice to grant the application for leave to appeal directly to this court; F

(b)

whether the scheme of the amendment or each of the impugned provisions complies with the requirement of rationality;

(c)

whether s 12(1)(c) of the Constitution applies to and protects the physical integrity of road accident victims;

(d)

if it does, whether the right has been unjustifiably limited; G

(e)

whether s 25(1) of the Constitution applies to a claim for loss of earning capacity or of a dependant's support;

(f)

if it does, whether the right has been unjustifiably limited;

(g)

whether the tariff of health care services the Minister has prescribed under reg 5(1) limits the right of access to health care services required by ss 27(1)(a) and (2) of the Constitution; H

(h)

if it does, whether the right has been unjustifiably restricted;

(i)

whether the impugned provisions of the amendment infringe the right to appropriate relief provided for in s 38 of the Constitution;

(j)

what is the appropriate remedy, if any; and

(k)

what costs order should be made? I

Should leave to appeal be granted?

[11] In Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others, we restated the considerations that are relevant for deciding whether to grant leave to appeal to this court directly from the High Court: J

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A 'Leave to appeal directly to this Court will be granted if it is in the interests of justice to do so. Each case is considered on its own merits. The factors relevant to a decision whether to grant an application for direct appeal have been listed as including whether there are only constitutional issues involved, the importance of the constitutional issues, the saving in time and costs, the urgency, if any, in having a final B determination of the matters in issue and the prospects of success. These must be balanced against the disadvantages to the management of the Court's roll and to the ultimate decision of the case if the Supreme Court of Appeal (SCA) is bypassed.' [4] [Footnotes omitted.]

[12] With these considerations in mind, I am satisfied that the application C for leave to appeal should be granted. This matter raises two main constitutional issues. The first relates to the rationality of the scheme of the RAF Act as amended. The threshold requirement of rationality to which all legislation must conform is an incident of the rule of law, a founding value of our Constitution. The second constitutional issue concerns the claim that the challenged provisions of the RAF Act infringe D four specified rights provided for in the Bill of Rights.

[13] In my view the public interest and thus the interests of justice require that the constitutionality of the legislative scheme be definitively considered by this court at the earliest opportunity. The Fund, correctly so, does not oppose this court hearing the appeal and in fact abides the E court's decision on whether leave to appeal should be granted. The Minister opposes leave to appeal being granted, on the narrow ground that the applicants seek to appeal directly to this court when they should have first approached the Supreme Court of Appeal. He takes the view that this matter concerns the development of the common law.

F [14] It is true that ordinarily, when a matter concerns the adaptation of the common law, this court is reluctant to bypass the Supreme Court of Appeal and sit as a court of first and final appeal, without the benefit of its expertise in this area of the law. [5] However, this appeal does not relate to the development of the common law. It concerns, and only in part, the G constitutional validity of the statutory abolition of common-law claims of an accident victim against a wrongdoer, to the extent that the Fund is not liable to compensate the victim. Even in that regard, we are called upon to determine whether the abolition unjustifiably infringes constitutional rights. Thus, the core task before us is to test whether the amendment passes constitutional muster. The rest of the challenges to the amendment H are unrelated to the common law.

[15] There are indeed other weighty considerations which favour this court hearing a direct appeal from the High Court. We are informed that

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some 20 000 claims arise each month under the RAF Act. Many victims A are poor and all are disadvantaged by the current...