Swanepoel v Johannesburg City Council President Insurance Co Ltd v Kruger

• Jurisdiction: South Africa
• Judge: Botha JA, Hefer JA, Eksteen JA, Nicholas AJA and Olivier AJA
• Judgment Date: 27 May 1994
• Docket Number: 760/92 and 90/93
• Court: Appellate Division
• Hearing Date: 17 May 1994
• Citation: 1994 (3) SA 789 (A)

Hefer JA:

In terms of s 2 of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 an agreement entered into by the Republics of South Africa, I Transkei, Ciskei, Venda and Bophuthatswana was ratified and incorporated into the law of South Africa as if it were an Act of Parliament. The agreement established a common fund (the Multilateral Motor Vehicle Accidents Fund - 'the MMF') which was declared a juristic person within the territory of each of the contracting States. In terms of art 40 of the J agreement the MMF and its appointed agents are obliged

Hefer JA

A (subject to certain exclusions and limitations not presently relevant) to compensate any person whomsoever for any loss or damage which he has suffered as a result of bodily injury to himself, or the death or bodily injury to any other person, caused by or arising from the driving of a motor vehicle anywhere within the area of jurisdiction of the member states, if the death or injury is due to the negligence or other unlawful B act of the driver or owner of the vehicle in question.

The agreement was amended in several respects by Proc 102 of 1991 which came into operation on 1 November 1991 (the 'effective date'). In the present appeals we are concerned with the amendment of arts 55 and 57, which brought about an extension of the period of prescription of claims C for compensation. The main issue is whether the extended period is applicable to claims which arose before the effective date. In the case of Kruger v President Insurance Co Ltd the Court a quo (Thirion J), in a judgment reported in 1994 (2) SA 495 (D), ruled that the extended period was indeed applicable but in the case of Swanepoel v Johannesburg City Council Eloff JP came to a different conclusion in a judgment reported in D 1994 (1) SA 468 (W).

It must be pointed out at the outset that Eloff JP's judgment is largely based on the decision of this Court in Protea International (Pty) Ltd v Peat Marwick Mitchell & Co 1990 (2) SA 566 (A), and on what is referred to therein at 570B-C as E

'a general rule of construction . . . (that) the operation of a statute is prospective, to apply only after its enactment (in futuro), unless the legislator clearly expressed a contrary intention that the operation should be retrospective to apply prior to its enactment (in praeterito)'.

However, what required the attention of the Court in that case was an F amendment to the Prescription Act 68 of 1969 which affected the date on which prescription commenced in the context of a debt which had become due before the date of the amendment. The situation in the present cases is entirely different. We are not concerned with the date of commencement of the prescriptive period nor, I may add, with the effect of the amendment on claims which had already become prescribed, nor with any other past G event. Our sole concern is the effect of the amendment on claims which, although having admittedly arisen before, had not become prescribed on the effective date. Viewed in this manner it is difficult to understand the relevance of the so-called rule against retrospectivity. What arts 55 and 57 in their amended form in effect say is that, depending upon whether a H claim is lodged with an appointed agent in terms of art 62 or not, the right to claim compensation shall henceforth become prescribed either three or five years after the claim arose. Its effect is plainly prospective. But this does not entail that existing rights, simply because they accrued in the past, are not similarly affected; the amendment relates, not to the date of the accrual before the effective date, but to I the date of the expiry of the rights thereafter. The amending statute is not

'a retrospective statute because part of the requisites for its action is drawn from time antecedent to its passing'

(per Lord Denman in R v St Mary, Whitechapel (Inhabitants) 116 ER 811 J ((1848) 12 QB 120) at 814. This principle was adopted inter alia in R v

A Grainger 1958 (2) SA 443 (A) at 446 and Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3) SA 800 (A) at 812A-F and 817I-818A.

In any event we must bear in mind that

'these rules of statutory exegesis are intended as aids in resolving any doubts as to the Legislature's true intention. Where this intention is...