Tsotetsi v Mutual & Federal Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: O'Regan J, Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, Ngoepe AJ, Sachs J
• Court: Constitutional Court
• Citation: 1997 (1) SA 585 (CC)
• Docket Number: CCT 16/95
• Counsel: W H Trengove SC (with him I Smith) for the applicant. J J Gauntlett SC (with him D A Preis) for the respondent.
• Hearing Date: 29 August 1995

Tsotetsi v Mutual & Federal Insurance Co Ltd
1997 (1) SA 585 (CC)

1997 (1) SA p585

Citation	1997 (1) SA 585 (CC)
Case No	CCT 16/95
Court	Constitutional Court
Judge	O'Regan J, Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, Ngoepe AJ, Sachs J
Heard	August 29, 1995
Judgment	May 16, 1996; September 12, 1996
Counsel	W H Trengove SC (with him I Smith) for the applicant.; J J Gauntlett SC (with him D A Preis) for the respondent.

Flynote : Sleutelwoorde B

Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Applicability of — Action for damages under Multilateral C Motor Vehicle Accidents Fund Act 93 of 1989 — Accident on which action based occurring before Constitution came into force — Defendant relying on provisions of art 46(a)(ii) and art 47(a) of Agreement Establishing the Multilateral Motor Vehicle Accidents Act in Schedule to Act, limiting liability of Fund — Plaintiff challenging constitutional validity of those articles — As D accident occurred before Constitution came into force, liability to pay damages fixed at date of accident — Such liability could not subsequently be expanded by Constitution which came into effect thereafter — Plaintiff not entitled to rely on Constitution to challenge validity of arts 46(a)(ii) and 47(a) — No exceptional circumstances justifying non-applicability of general rule of non-retroactivity or special order in terms of proviso to s 98(5) of Constitution. E

Motor vehicle accidents — Compensation — Claim for in term of Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 — Limitations of claim in terms of art 46 (a)(iii) and art 47 (a) of Agreement Establishing the Multilateral Motor Verhicle Accidents Fund in Schedule to Act — Validity of — Provisions F thereof challenged as being inconsistent with Constitution of the Republic of South Africa Act 200 of 1993 — Accident on which claim based occurring before Constitution came into force — Liability to pay damages fixed on date of accident — Such liability could not subsequently be expanded by Constitution which came into effect thereafter — Plaintiff not entitled to rely on Constitution G

1997 (1) SA p586

to challenge validity of art 46 (a)(ii) and 47 (a) — No exceptional circumstances A justifying non-applicability of general rule of non-retroactivity.

Headnote : Kopnota

The applicant had instituted an action against the defendant in a Provincial Division claiming damages for injuries which he had sustained in a motor vehicle accident which B had occurred on 25 February 1991, before the Constitution of the Republic of South Africa Act 200 of 1993 came into force. The respondent (defendant) was the appointed agent in terms of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989. In its plea the respondent had relied on the provisions of art 46(a)(ii) and art 47(a) of the Agreement Establishing the Multilateral Motor Vehicle Accidents Fund C contained in the Schedule to the Act, which provisions limited the extent of the liability of an appointed agent in the circumstances set out therein. The applicant, in his replication, challenged the constitutional validity of arts 46(a)(ii) and 47(a) and applied for an order referring the question of their validity to the Constitutional Court in terms of s 102(1) of the Constitution. That application was granted. When the matter came before the Constitutional Court the competence of the referral was raised. D

Held, that the accidents in which the applicant was injured had occurred before the Constitution came into force, and the liability of the respondent to pay damages was fixed at the time of the accident: the effect of the decision in Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658) at para [19] was that the respondent's obligation to pay damages, fixed as it was at the time of the E accident, could not subsequently have been expanded by the Constitution which came into effect only after the accident happened; the applicant was accordingly not entitled to rely on the provisions of the Constitution to challenge the validity of arts 46(a)(ii) and 47(a) of the Schedule to Act 93 of 1989. (Paragraph [6] at 589B-D.)

Held, further, that there were no special or peculiar circumstances justifying an order F being made which would have the effect of giving the Constitution retroactive operation. (Paragraph [8] at 589H-I, paraphrased.)

Held, further, as to the question whether the interests of justice and good government would not best be served by an order in terms of the proviso to s 98(5) of the Constitution suspending the order of invalidity for a period of time to give the Legislature an opportunity to attend to the matter, that the present matter was not a G case in which public policy required, not merely that a retrospective order be made, but an order which would result in the Constitution operating retroactively. (Paragraph [10] at 590D-E and 590G.)

Held, accordingly, that the referral in terms of s 102(1) of the Constitution by the Provincial Division was not valid on the ground that the issue referred to the Constitutional Court could not be decisive of the case before the Provincial Division. H (Paragraph [10] at 590G-H.)

Held, further, as to the question whether direct access to the Constitutional Court should not be granted in terms of s 100(2) of the Constitution read with Rule 17(1) of the Constitution, that there were no exceptional circumstances justifying the grant of such direct access: in the light of the Court's conclusions concerning the inapplicability I of the Constitution to the applicant's claim, there was no possibility at all that the applicant would be assisted by any order that the Constitutional Court might make; the respondent was opposed to the order; there was no allegation of any disruption in the business of the Motor Vehicle Accidents Fund sufficient to warrant the grant of direct access; it had not been shown that an appropriately qualified litigant would have difficulty in approaching the J

1997 (1) SA p587

Constitutional Court for relief; nor were there any other particular circumstances A suggested by the applicant which would warrant the grant of direct access in the present case. It was accordingly not an appropriate case in which direct access should be granted. (Paragraphs [11] and [13] at 591A/B and 591G/H-I/J.) Matter remitted to the Provincial Division.

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court: B

Besserglik v Minister of Trade, Industry and Tourism and Others (Minister of Justice Intervening) 1996 (4) SA 331 (CC) (1996 (6) BCLR 745)

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752)

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658) C

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