Road Accident Fund v Monjane

• Jurisdiction: South Africa
• Judge: Scott JA, Cameron JA, Cloete JA, Maya JA et Theron AJA
• Judgment Date: 18 May 2007
• Citation: 2010 (3) SA 641 (SCA)
• Docket Number: 295/06
• Hearing Date: 04 May 2007
• Counsel: SM Guldenpfennig (with T Pillay) for the appellant. KM Röntgen for the respondent.
• Court: Supreme Court of Appeal

Scott JA: F

[1] The appellant is the Road Accident Fund, a juristic person established in terms of s 2 of the Road Accident Fund Act 56 of 1996 (the RAF Act). The respondent (the plaintiff in the court below) instituted G action in the Pretoria High Court against the Fund for the payment of damages in the sum of R417 600 in respect of injuries he sustained in consequence of the negligent driving of a motor vehicle by Mr Michael Duarte. The circumstances in which his injuries were sustained are set out in para 3 of his amended particulars of claim, which reads:

H 'On or about the 22nd day of May 1997 and at approximately 11 am and at the Krugersdorp Market, Krugersdorp, Gauteng Province, the plaintiff was engaged in the loading of vegetables on a certain motor vehicle with registration number GZT056T driven by one Michael Duarte when the said driver suddenly and without warning and with reckless disregard for the presence and safety of the plaintiff pulled away I or put his said truck in motion causing the plaintiff to fall from the said vehicle.'

The Fund filed a special plea in which it averred that on 22 May 1997 the plaintiff's employer was the driver of the vehicle concerned and that, even if the plaintiff's injuries were caused by the former's negligent J driving, the Fund was not liable to the plaintiff in law -

Scott JA

'. . . because in terms of Section 19(a) of the Road Accident Fund Act, Act 56 of 1996 A [the Fund] shall not be obliged to compensate any person for any loss or damage for which neither the driver nor the owner of the motor vehicle concerned would have been liable [and] in terms of Section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, no action shall lie by the Plaintiff (as employee) against the said insured driver (the employer).' B

The matter came before Shongwe DJP who, at the request of the parties, ordered that the special plea be dealt with first. No evidence was adduced, but the parties reached agreement on the facts necessary for the determination of the special plea. They were: (a) that the respondent C was 'a pedestrian' at the time of the accident (by which the parties presumably intended to convey that the respondent was not 'being conveyed in or on the motor vehicle concerned' within the meaning of s 18 of the RAF Act); (b) that he was in the employ of Duarte and was carrying out his duties in pursuance of that employment when the D accident occurred; and (c) that Duarte was solely to blame for the accident. After hearing argument and reserving judgment Shongwe DJP dismissed the special plea with costs, but subsequently granted the Fund leave to appeal to this court.

[2] Before dealing with the issues raised in the special plea it is necessary E to outline the relevant statutory provisions.

[3] Section 17 of the RAF Act imposes on the Fund (or an agent) an obligation -

'to compensate any person (the third party) for any loss or damage F which the third party has suffered as a result of any bodily injury to himself or herself . . . 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. . . '.

Where the identity of the driver or owner has been established (as in the G present case) this obligation is stated in s 17(1)(a) to be 'subject to this Act'. The sections that follow contain a number of qualifications to the general obligation imposed in s 17.

[4] In terms of s 18(1) and (2) the Fund's liability is limited in certain H...