NZAYIKORERA ET AL v. SANLAM AG Plc

# NZAYIKORERA ET AL v. SANLAM AG Plc

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-01-17 - Case/document no.: RS/INJUST/RC 00008/2024/SC - Collection: Supreme Court

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NZAYIKORERA ET AL v. SANLAM AG Plc [Rwanda SUPREME COURT –RS/INJUST/RC 00008/2024/SC (Hitiyaremye, P.J., Kazungu, Kalihangabo, J.) 17 January 2025] Civil Procedure – Accidents– Occupational accident – An occupational accident is an event or circumstance that befalls a person at a specific moment as a result of, or during the performance of, their work, causing bodily harm regardless of the time at which such harm becomes apparent. Labour procedure – Social security coverage for an employee — Every employee, including those engaged on a short-term basis, must be enrolled in the employees’ social security scheme. Civil procedure –Occupational accident – The law applicable to occupational accidents – Occupational accidents are governed by Social Security scheme legislation. Civil Procedure – Insurance — Workers in construction activities — Employees engaged in construction work or similar activities must be covered by a specific insurance scheme designed to ensure their protection. Labour procedure – Occupational accident – Basis for compensation arising from an occupational accident — Compensation granted to a person who has suffered an occupational accident does not derive from the principle of civil liability; rather, they are governed by the employees’ social security scheme, which provides the victim with medical care and other related compensatory benefits. Facts: This case originates from an accident involving a certain car belonging to CRBC Ltd, a Chinese Company. The truck was driven by Bagirubwira and was transporting building sand. When its brakes got loose, the truck hit the roadside wall and the accident claimed the life of Nshimyumukiza Isacar and his five co-workers of the company got injured. Nshimyumukiza’s relatives together with Nzayikorera, his wife, wrote to the management of SANLAM AG Plc (Sanlam) seeking compensation for the accident; as they based their compensation claim on a fact that the involved vehicle was insured by SANLAM Insurance Company. Sanlam dismissed their application and replied that they deserve no more compensations since the Insurance had already paid its dues as it is expressed in “workmen compensation insurance scheme” agreement that the former SORAS AG Ltd concluded with CHINA ROAD AND BRIDGE CORPORATION Ltd (CRBC Ltd). When parties failed to settle the dispute, the claimants filed a claim before the Intermediate Court of Nyarugenge requesting Sanlam to give them compensations for financial loss and other various damages, and CRBC Ltd was forced to intervene into the case. The seized court found no reasons of awarding them more compensations since they had already received the due compensations as expressed in the above-mentioned workmen collective insurance coverage agreement. The claimants appealed the above judgement before the High Court arguing that the previous court was not supposed to base its ruling on an agreement for which their late relative has never been a party. The Court held that the claimants’ appeal has no justification, and it stayed the appealed judgement. Nzayikorera and his co-claimants, resorted to the review of judgment on grounds of injustice, brought the matter before the Supreme Court, which reopened the proceedings to examine the

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issue of determining the appropriate insurance regime applicable to the award of compensation arising from the accident of 21/09/2014, in which Nshimyumukiza Isacar lost his life.co-applicants The petitoners contented that the accident damage compensations were not supposed to be paid with reference to workmen compensation insurance scheme agreement; arguing that the involved compensations ought to be computed with reference to the Presidential order no 31/01/of 25/08/2003 on compensations for personal injury due to accidents caused by motor vehicles, lamenting against the forced reception of Frw1,000,000 from the workmen collective insurance coverage agreement, to which the victim has never been a signatory; and thus side-lining the existing appropriate insurance scheme that awards an adequate compensation for any victim involved into accidents caused by road-using motorised vehicles as provided by the above said Presidential order no 31/01 of 25/08/2003. They however proposed that in case of no applicable insurance scheme, the appropriate compensations must be paid by CRBC Ltd, after deducting Sanlam’s deposit. Sanlam argued that all the due compensations have already been paid with reference to “workmen compensation insurance scheme” agreement between Sanlam and CRBC Ltd. And went on to argue that employees involved into work-related accidents are not compensated through tort liability insurance schemes. CRBC Ltd argued that it owes no payment of compensations due to lack of its accountability into the accident; adding that the whole responsibility goes to the late victim who deliberately took a fatal risk of boarding a sand-loaded vehicle. And they went on to say that the legislation better applying to this case are laws relating to workmen collective insurance coverage agreement concluded between CRBC Ltd and Sanlam since the agreement was lawfully conducted. The Court found that the most appropriate insurance coverage would have been CRBC Ltd.’s workers’ affiliation into the ordinary social security scheme, or/and enrolment of its workers into the so-termed “workmen compensation insurance” scheme. Held: 1. Occupational accidents are governed by Social Security legislation; 2. Employees engaged in construction work or similar activities must be covered by a specific insurance scheme designed to ensure their protection; 3. Compensation granted to a person who has suffered an occupational accident does not derive from the principle of civil liability; rather, they are governed by the employees’ social security scheme, which provides the victim with medical care and other related compensatory benefits. The application for the review of judgment on grounds of being vitiated by injustice lacks merit. Statutes and statutory instruments referred to: Decree-Law n° 32/75 of 07/06/1975 on compulsory civil liability insurance for motor vehicles, article 4; Law n° 06/2003 of 22/03/2003 modifying and completing the decree law of august 22, 1974 concerning organisation of social security, article 13; Law n0 10/2012 of 02/05/2012 governing urban planning and building in Rwanda, article 41.

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Cases referred to: HATEGEKIMANA BONAVENTURE V HAYTON LTD, RS/INJUST/RC 00007/2022/SC, rendered by the Supreme Court on 14/04/2023. Authors quoted : Arnaud Buisson Fizellier, La réparation intégrale du préjudice: rappel du principe et applications pratiques. Lettre d’information décembre 2006. www.bfpl-law.com/publications/la- reparation-integrale-du-prejudice- rappel-du-principe-et-applications-pratiques-lettre- dinformation-decembre-2006. Judgment I. BACKGROUND OF THE CASE [1] This case originates from a car accident that occurred on the 21/09/2014at around 11:30 am when a truck Mitsubishi Dumper with plate number IT 610 RC, loaded with building sand, driven by Bagirubwira Joseph got its brakes loose and hit the roadside retaining wall in Magarama Village, Ngoma Cell, Gishyita Sector of Karongi District in the Western Province. Nshimyumureyi Isacar, 29-years-old, lost his life into the accident, while his five co-workers got injured1 [2] Nzayikorera Jeanne, Uwimpundu Marie, Mukashema Mamelthe, Ndengeyingoma Bosco, Tuyishimire Béatrice, Nyirangirimana Béathe, Nyiragasigwa Agnès and Bihoyiki Vestine ( Hereinafter referred to as Nzayikorera Jeanne and her co-petitioners2) wrote to the management of SORAS AG Ltd, the current SANLAM AG Plc, seeking compensations for the accident that claimed the life of the de cujus, and they based their claim on a fact that the vehicle that got into the accident was insured by SANALAM AG PLc . [3] The Legal counsel representing SANLAM AG Plc. argued that Nzayikorera Jeanne and her co-petitioners deserve no compensations from the Insurance Company since it had already paid all the due compensations as it is agreed in the workmen compensation insurance scheme agreement that SORAS AG Ltd had concluded with CHINA ROAD AND BRIDGE CORPORATION Ltd (hereinafter referred to as CRBC Ltd). [4] When both parties failed to reach an agreement, Nzayikorera Jeanne and her co- applicantsfiled a claim before the Intermediate Court of Nyarugenge praying the court to order SORAS AG Ltd to pay them for accident-related financial loss, together with moral damages, refund for the deceased’s funeral expenses, litigation costs, as well as court fees. [5] For this case, CRBC Ltd, the deceased’s employer, was forced to intervene into the case for some liability.

1 Others who got injured in the same accident include Shingiro Emmanuel 28-years-old, Twizeyimana Ignace 30, Nsengimana Thomas 27, Ntezimana Alphonse 31 and Mpayimana Jean Claude 30. 2 MUKASHEMA Mamerithe is the deceased’s parent, NZAYIKORERA Jeanne is the deceased’s surving spouse, UWIMPUNDU Marie is the deceased’s child, while NDENGEYINGOMA Bosco, TUYISHIMIRE Beatrice, NYIRANGIRIMANA Beathe, NYIRAGASIGWA Agnes and BIHOYIKI Vestine are the deceased’s siblings.

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[6] In judgment RC 00840/2019/TGI/NYGE, rendered on 17/12/2020, the Nyarugenge Intermediate Court held that the claim brought by Nzayikorera Jeanne and her co-applicants was unfounded, and ordered Nzayikorera Jeanne and the others to jointly pay SORAS AG Ltd and CRBC Ltd Frw 500,000 each as counsel fees. [7] In reaching its decision, the Court stated that Nzayikorera Jeanne and her co-applicants were not entitled to any additional compensation because she had already received such benefits on 26/11/2015, pursuant to the agreement concluded between CRBC Ltd and SORAS AG Ltd, which provided that in the event one of its employees suffered an occupational accident, SORAS AG Ltd would pay compensation amounting to Frw 1,000,000. The Court further noted that she had personally signed to acknowledge receipt of that amount and to confirm that she would pursue no further claims. [8] Nzayikorera Jeanne and her co-applicants appealed that above ruling before the High Court, lamenting that the previous court ought not to base its decision on a certain agreement concluded between CRBC Ltd and SORAS AG Ltd since such an agreement has nothing to do with Nshyimyumukiza Isacar, more so that in signing that agreement, the latter has never been consulted by his employer for its conclusion; they have also argued that every vehicle using roads in Rwanda must have a compulsory insurance to cover any caused damages. [9] On 25/11/2022, the High Court heard case RCA 00017/2021/HC/KIG and held that the appeal made by Nzayikorera Jeanne and her co-applicants has no substance, and it stayed the ruling from the Intermediate Court of Nyarugenge. [10] For making its decision, the High Court made reference to a certain agreement that CRBC Ltd had concluded with SORAS AG Ltd, the current SANLAM AG Plc, whereby the agreement stipulated about CRBC Ltd.’s workmen compensation insurance scheme holding that though Nshimyumukiza Isacar played no role in the conclusion of the above agreement, such a scheme supported his family when Nzayikorera Jean received Frw1,000,000 the agreement provided for. [11] The very court has also held that a mere fact that the death of Nshimyumukiza Isacar was caused by his employer’s vehicle does not exclude a fact that he succumbed into work-related accident, more that the he died while at his work duties; therefore holding that Nzayikorera Jeanne and her co-applicants could not base their compensation claim on the Presidential Decree n0 31/01 of 25/08/2003 on compensations for personal injury due to accidents caused by motor vehicles more so that even CRBC Ltd.’s vehicles compulsory insurance does provide coverage for its labour law-governed employees. [12] On 03/01/2023 , Nzayikorera Jeanne and her co-applicants petitioned the President of the Court of Appeal and prayed him to have case RCA 00017/2021/HC/KIG rendered by the High Court on the 25 November 2022, reviewed for grounds of injustice. Upon examining the review request, the President of the Court of Appeal wrote to the President of the Supreme Court and requested him to have the case reviewed. And, in his decision n0 077/CJ/2024 of 22/05/2024, the President of the Supreme Court approved the request, and the case was sent to the Supreme Court’s Registry for rehearing.

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[13] The public hearing of the case was conducted on 12/11/2024with Nzayikorera Jeanne and her co-applicants represented by Counsel Nsabayezu Evariste, SANLAM AG Plc. represented by Counsel Rusanganwa Jean Bosco, while CRBC Ltd was represented by Counsel Niyitegeka Eraste, and litigants debated on the following issues: i. Determining an insurance scheme that best applies for compensating damages arising from the accident of the 21/09/2014; ii. The merit of compensations requested by Nzayikorera Jeanne and her co-applicants for the accident that claimed the life of Nshimyumukiza Isacar; iii. The relevance of all civil damages that are requested for along this case. II. ISSUES OF THE CASE AND THEIR ANALYSIS 1. II.1. Determining an insurance scheme that best applies for compensating damages arising from the accident of 21/09/2014 which claimed the life of Nshimyumukiza Isacar [14] Counsel Nsababyezu Evariste representing Nzayikorera Jeanne and her co-applicants argues that CRBC Ltd ‘s attorney acknowledged that the very company subscribed for two (2) types of insurance coverage; with one of them being the so-called “ workmen compensation insurance”3 whereby CRBC Ltd and SANLAM AG Plc concluded an agreement by which SANLAM AG Plc committed to pay Frw 1,000,000 for each employee who succumbs to a fatal accident or who sustains a body permanent incapacity; and conceding to pay Frw 100,000 for medical bills. And the second insurance being a compulsory insurance coverage for the CRBC Ltd.’s vehicle Mitsubishi IT 610 RC, still subscribed under SANLAM AG Plc4, then referred to as SORAS AG Ltd. [15] He also submits that a mere fact that CRBC Ltd admits that Nshyimyumukiza Isacar succumbed to the accident involving the company’s vehicle and yet the very vehicle was insured by SANLAM AG Plc., he finds that Nzayikorera Jeanne and her co-applicants were not supposed to be compensated with reference to the so-called “ workmen compensation insurance5 agreement”, instead, they ought to be indemnified with reference to the provisions of the Presidential order n0 31/01 of 25/08/2003 on compensations for personal injury due to accidents caused by motor vehicles. [16] He goes on and argued that Nzayisenga Jeanne and her co-applicants ought not to be forced into the reception of just Frw 1,000,000 from the workmen compensation insurance scheme agreement, to which the victim has never been a signatory; and thus side-lining the existing appropriate insurance scheme that awards the adequate compensations for any victim involved into accidents caused by road-using motorised vehicles as provided by the Presidential order n0 31/01 of 25/08/2003 on compensations for personal injury due to accidents caused by motor vehicles.

3 Held from 23/01/2014, and valid from 23/01/2014up to 23/01/2015, and for the benefit of 300 CRBC Ltd’s workers. 4 Held from 16/01/2014 for a variety of CRBC Ltd’ vehicles, including the vehicle that got involved into the accident, and all valid from 21/01/2014 to 20/01/2015. 5 The case file contains a proof that Nzayisenga Jeanne received a cheque with sort code n0 26-212 of Frw 1,000,000 on the 19/11/2015.

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[17] He however proposes that in case the court finds no insurance scheme that can help for paying compensations that Nzyikorera Jeanne and her co-applicants sought for, the appropriate compensations must be paid by CRBC Ltd after deducting the deposit made by SANLAM AG Plc. He clarifies that they learnt about the existence of a certain insurance agreement between CRBC Ltd and SORAS AG Ltd during the first hearing, and that is when they requested CRBC Ltd to pay the remaining balance in the light of the existing higher courts’ jurisprudence on similar matters. [18] He goes on to lament that a fact that SANLAM AG Plc. and CRBC Ltd determined the claimants compensation amount with reference to both companies’ bilateral agreement, and he prays the court to have the agreement rescinded as it contravenes the provisions of the Constitution of the Republic of Rwanda especially on matters pertaining to people’s equality before the law. He discredits a procedure that compensated the claimants with reference to an agreement the victim’s family has never been a party, and all done by discarding the appropriate insurance scheme that usually compensates victims for road accidents as clarified by the above provided President order n0 31/01 of 25/08/2003. [19] He goes ahead and rebutted CRBC Ltd.’s argument of seeking the plaintiffs’ claim solution into social security insurance schemes, since such was not the issue of litigation; he argued that the plaintiffs’’ claim is about compensations for road accidents, which must be awarded with reference to the Presidential order n0 31/01 of the 25/08/2003 on compensations for personal injury due to accidents caused by motor vehicles. [20] He therefore concludes that a fact that CRBC Ltd decided to pay a derisory compensation of Frw 1,000,000 to the victim’s spouse as it is evidenced by receipt acknowledgement records, and moreover with nothing that proves that she represented the rest of her co-applicants in this case, indicates that CRBC Ltd conducted an illegal agreement. He also dismissed CRBC Ltd.’s allegations of the victim’s role into the accident. [21] Counsel Rusanganwa Jean Bosco representing SANLAM AG Plc. argues that Nzayikorera Jeanne and her co-applicants deserve no more compensations since all the due amount has already been paid as per the agreement between SANLAM AG Plc and the victim’s employer; where by Nzayikorera Jeanne has herself signed for full payment receipt as per the stipulation of the agreement. He also adds that Court made reference to both the terms of the agreement and the provisions of article 646 of the Law n0 45/2011 of 25/11/2011 governing contracts. [22] He then argues that though Nzayikorera Jeanne and her co-applicants still insist that the sought compensations must be determined with reference to the Presidential order n0 31/01 of the 25/08/2003 on compensations for personal injury due to accidents caused by motor vehicles, they simply feign to ignore the following: i. It is not the Presidential order that provides for compulsory insurance scheme, as it is rather provided under the Decree-Law n0 32/75 of 07/08/1975, which has also clarified that work- related hazards are not covered by compulsory insurance scheme;

6 That article provides that “contracts made in accordance with the law shall be binding between parties. They may only be revoked upon the mutual consent of parties or for reasons based on law. They shall be performed in good faith”

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ii. For the abovementioned Decree-Law, vehicles’ insurance policy, puts it clear that workers befallen by accidents while at their work duties are not covered by tort liability insurance scheme7. This denotes that workers who got into an accident while into the employer’s vehicle and at their work duties are excluded from compulsory insurance coverage scheme; and that is why CRBC Ltd concluded a separate insurance scheme for its workers (Social security insurance), and they so did since the compulsory insurance scheme could not cater for its workers involved into the employer’s car accidents while at their work. iii. The above highlighted stance is exactly the position of article 148 (3) of the Law n0 0030/2021 of 30/06/2021 governing the organisation of insurance business, whereby it provides that: […] Under liability insurance, employees or representatives of a policyholder while on duty, are not entitled to any benefit”. He also reminds that the aforesaid law came to repeal the Decree-Law n0 20/75 of 20/06/1975 relating to Insurance organisation. iv. Nzayikorera Jeanne and her co-applicants concur with a fact that the deceased was CRBC Ltd.’s employee, they also admit that she received a compensation of Frw 1,000,000 from a separate insurance scheme that the employer had arranged for its employee due to the inexistence of compulsory insurance for the company workers involved into its cars accidents while on duty. [23] He reminds that for case RC 00840/2019/TGI/NYGE, Nzayikorera Jeanne and her co- applicants requested SANLAM AG Plc. to pay all the due compensations while CRBC Ltd remained unconcerned. However, they later on reversed their pleadings and for case RCA 00017/2014/HC/KIG, and they then argued that the sought compensations must rather be paid by CRBC Ltd, and they so did with reference to a precedent from a certain judgment RCA 00011/2016/HC/RWG of 12/05/2017, whereby the High Court, Rwamagana Chamber ordered an employer to pay the whole compensation for an accident. [24] He goes on to argue that all compensations that Nzayikorera Jeanne and her co-applicants seek from SANLAM AG Plc have no justifications since they have already received all due compensations as per the terms of an agreement concluded between SANLAM AG Plc and CRBC Ltd for the latter’s workmen compensation insurance scheme . He therefore argues that a mere fact that the victim had a fatal accident while on duty and moreover in the employer’s work vehicle is enough to qualify the accident as an occupational hazard, and it should not be considered as a CRBC Ltd.’s third- party liability. [25] He concludes on this issue that the argument raised by Counse Nsabayezu Evariste, representing Nzayikorera Jeanne and her co-applicants, requesting the Court to examine whether the legal provisions relied upon in the decision subject to review on grounds of injustice are inconsistent with the Constitution, has no merit. He explains that the matter before the Court bears no relation to claims seeking the repeal of statutory provisions on the grounds of their unconstitutionality (unconstitutionality of a law / l’inconstitutionnalité d’une loi).

7 See General insurance policy offered by SORAS AG Ltd (Conditions Générales), Chapter 1, article 7 (3).

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[26] Counsel Niyitegeka Eraste representing CRBC Ltd argues that Nzayikorera Jeanne and her co-applicants have already received all the due compensations as per the terms of an agreement CRBC Ltd concluded with SANLAM AG Plc. regarding the company’s workmen compensation insurance scheme. He also adds that it is important to note that the de cujus has himself played a role into the accident when he took an unacceptable fatal risk of boarding a loaded vehicle. [27] He further argues that the court should as well consider the driver’s responsibility into the accident. The driver is the person who actually caused the accident and he should therefore be the one answering for it. [28] For the argument made by the claimants’ attorney, now claiming the whole compensation from CRBC Ltd, he prays the court to have it entirely dismissed; arguing that from all the previous courts, the claim has all along been about compensations from the vehicle’s compulsory insurance, he therefore argues that the claimants’ claim against CRBC Ltd cannot be litigated at its very first- time during injustice-related case review. [29] He argues that regardless any decision that the court may make, CRBC Ltd assumes no liability since it had no role into the accident ; and he dismissed all the damages sought against CRBC Ltd. He however states that in case the court finds it otherwise, he prays it to consider the victim’s direct role into the accident, especially when he decided to go on board of a loaded vehicle. He also adds that the laws that better apply to this case are the laws about workmen compensation insurance scheme agreement made between CRBC Ltd and SANLAM AG Plc., since the agreement was lawfully concluded. Adding that had the agreement been illegal, Nzayikorera Jeanne would not have accepted to receive the paid Frw 1,000,000 for compensation. [30] He concludes on this point by explaining that the reason Nzayikorera Jeanne was the only one who signed to acknowledge receipt of the compensation is that she is the primary heir, ranking before the others. DETERMINATION OF THE COURT [31] Both parties involved into this case concur on the fact that Nshimyumukiza Isacar succumbed to an accident while on duty, the sole issue of disagreement lies into the claimants’ insistence that the accident related compensations should be paid with reference to the Presidential order n0 31/01 of 25/08/2003 on compensation for body injury due to accidents caused by motor vehicles, while, on the other hand, SANLAM AG Plc and CRBC Ltd argues that the compensations must be paid in the light of the concluded “ workmen compensation insurance” agreement. a. When does the compulsory civil liability insurance with regard to automotive vehicles apply? [32] Article 4 of the Decree-Law n0 32/75 of 07 June 1975 relating to the compulsory civil liability insurance with regard to automotive vehicles, on which the Presidential Law n0 31/01 of 25/08/2003 on compensations for personal injury due to accidents caused by motor vehicles, is based, provides the following: “shall be excluded from compulsory insurance coverage (---) 30 3°

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persons who are protected by specific legislation relating to compensation for occupational risks, unless such persons opt to pursue compensation from the insured party”. [33] Article 7 of SANLAM AG PLc ‘s General Compulsory insurance policy ( Conditions Générales, Titre I. Assurance Obligatoire de Responsabilité Civile) provides the following: “The following are not eligible for insurance compensation ... 30 during their service, employees or agents of the insured or driver who are liable for the accident.”8 [34] Article 4 of the above said Decree-Law n0 32/75 puts it clear that parties involved into the conclusion of the compulsory civil liability insurance with regard to automotive vehicles may decide to have some categories of persons excluded for compensations. Such categories include persons under some separate social security schemes, and these persons have special legislations governing occupational hazards damage compensations. Though the above-mentioned law has not given the exact details, it is much clear that it refers to workers’ protection laws, more precisely laws pertaining to social security scheme9, or any other insurance arrangement held by the employer for his/her employees just as “workmen compensation insurance” that CRBC Ltd concluded for its’ workers on the 23/01/2021. [35] With regard to this case, it is clear that the above-mentioned SANLAM AG Plc ‘s General Insurance Policy does not include the insured’s employees at work, neither does include the driver whose vehicle caused the accident. It is also clear that such persons are as well not covered by an insurance10 that CRBC Ltd has subscribed for its vehicles. [36] Considering all the above provided explanations, the court finds that the compulsory civil liability insurance with regard to automotive vehicles could not apply for compensating the accident that claimed the life of Nshimyumukiza Isacar. b. Which Insurance scheme applies better for the accident that claimed the life of Nshimyumukiza Isacar while at work? [37] Before answering the above question related to determination of an insurance scheme that best applies for paying compensations due to the accident that claimed the life of Nshimyumuremyi Isacar, it is important to first clarify about this accident before we talk of the related damage compensations. [38] With regard to the accident that claimed the life of Nshimyumukiza Isacar, article 13 (1) of the Law n0 06/2003 of 22/03/2003 modifying and completing the Decree-Law of August 22,

8 “Ne peuvent bénéficier de l’indemnité d’assurance …(3o) pendant leur service, les salariés ou préposés de l’assuré ou du conducteur dont la responsabilité est engagée du fait de l’accident” 9 Article 47 (6) of the Law n0 13/2009 of 27/05/2009 governing labour in Rwanda provides that one of the main obligations of the Employer is to have his/her employees affiliated with Social Security Scheme -Article 2 (1) of the Law n0 06 of 22/03/2003 modifying and completing the Decree-Law of 22/08/1974 on Social Security Scheme provides that this law concerns workers subject to labour regulations, non-retired political appointees, and government statutory civil servants. While the second paragraph of the very article provides the following: “occasional and temporary workers shall as well be considered as works mentioned in paragraph one of this article. 10 See special insurance coverage: I. Particular conditions for covering personal accidents (for owners, relatives and drivers)

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1974 concerning organisation of social security defines work injury as “Work injury is considered as any accident, whatever the cause may be, that befalls a worker while on duty”. When we look into other countries, scholars of French laws referred to article L 411-1 s. CSS and work injury was largely defined as an event or series of events occurring on specific dates and arising out of, or during the course of employment, resulting in body injury, regardless of when the injury manifested itself11” Nshyimyumukiza Isacar had an accident while at CRBC Ltd.’s work, as they brought the building sand for the construction of the road RUVUMU- KIBUYE, and all litigants concur on such a fact. Such a version makes it clear that Nshimyumukiza Isacar succumbed into work-related accident, and his case must be handled with reference to social security legislations, and the accident compensation procedures must follow suit. [39] Concerning determination of persons responsible for the payment of compensations, legal doctrines from foreign countries such the above mentioned French Scholars, the provision of article L.451-1 CSS of French laws provides that work accidents are not compensated through tort liability12; arguing that work accidents are handled via social security schemes ( sécurité sociale), that cater for the victim’s medical support in the right proportions of his/her medical conditions and any other needed assistance; and related damage compensations follow the same framework. They have also added that workers could as well have private insurance coverage for any bodily injuries they might sustain while at work13. [40] [40] The employer must as well subscribe for “workers’ compensation insurance” scheme which can at times be referred to as “workmen compensation insurance”. Such an insurance is meant to cover the employees’ accidents while at duty and it saves the Employer from the workers’ complaints over work-accident damage compensations. This is the stance of insurance scholars as it is explained at the website of Insurance Information Institute (III) of Pennsylvania in the United States of America14. The above is the very explanation given by one Julia Kagan from New York via INVESTOPIA15 website, and via ASSURALIA16, the Belgian website. All these scholars argue that affiliating one’s employees with workmen compensation insurance scheme is compulsory. [41] Even in Rwanda, the above said insurance coverage is mandatory for construction works. Article 41 of the Law n0 10/2012 of 02/05/2012 governing urban planning and building in Rwanda provides the following: “the constructor shall, upon opening the construction site, subscribe an

11 Yvonne Lambert-faivre na Stéphanie Porchy-Simon: Droit du domage corporel, systeme d’indemnisation, éditions DALLOZ, 8è édition, P428 12 Idem. P437 13 Lorsque la victime d’un domage corporel ne peut attendre aucune indemnisation d’un tiers responsible, elle dispose cependant de certaines prestations de sécurité sociale qui lui permettent notamment de recevoir dessoins médicaux correspondant à son état, et éventuellemnt quelques subsides en éspèces; c’est aussi dansle cadre de la sécurité sociale que la victime d’un accident de travail est indemnisée. Elle peut en outre avair veillé à sa prévoyance personnelle en ayant souscrit des assurances de personnes pour ses dommages corporels d’accident ou de maladie”. Idem. Para 401. 14 “Workers compensation insurance serves two purposes: It assures that injured workers get medical care and compensation for a portion of the income they lose while they are unable to return to work and it usually protects employers from lawsuits by workers injured while working.” https://www.iii.org/publications/insuring-your- business-small-business-owners-guide-to-insurance/specific-coverages/workers-compensation-insurance. 15 https://www.investopedia.com/terms/w/workers-compensation.asp 16 “L’assurance contre les accidents du travail est une assurance obligatoire à charge de l’employeur. Il doit la souscrire auprès d’une entreprise d’assurance agréée pour couvrir ce risque. La police d’assurance doit être conclue avant l’embauche du premier travailleur” https://www.assuralia.be/fr/theme/travail- entreprise/assurance-accidents-du- travail.

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insurance to cover all possible risks that might arise on the construction site”, while article 42 of the very law provides that the constructor shall be covered with liability insurance covering any damage that may result from his/her actions. [42] Besides, Rwanda has some active specific legislations meant for workers’ welfare and protection: (i) article 47 (6) of Rwanda Labor law n0 13/2009 of 27/05/2009 in force by the time Nshimyumukiza Isacar had an accident, provided that one of the employer’s main obligations include having his/her employees affiliated with Social Security scheme ; article 2(1) of the Law n0 06/2003 of 22/03/2003 modifying and completing the Decree-Law of 22/08/1974 concerning organisation of social security as modified to-date provides the following : “ this law applies to workers subject to the provisions of labor regulations, non-retired State political appointees, and State civil servants under statutes regulations”, while paragraph 2 of the very article provides the following : “ casual and temporary workers shall as well be considered as workers mentioned under paragraph one of this article” [43] For judgment RS/NJUST/RC 00007/2022/SC17, the Supreme Court held that in any circumstance, every worker must have all his/her social security contributions remitted regardless of whether the worker is hired under unwritten or informal contract, or whether he/she has been hired for some temporary work. [44] Looking at the elucidations made by the above mentioned scholars coupled with the stance of the aforesaid Supreme Court’s precedent, it is pretty clear that each worker must be have his/her social security contributions remitted even if the worker was hired for some temporary employment, and it is ever clear that issues relating to work accidents are governed by social security legislations, adding to a fact that employers whose workers are engaged into construction works must have a separate insurance scheme for workers’ protection . [45] For this case at hand, the file contains nothing proving that CRBC Ltd declared and affiliated Nshimyumukiza Isacar and the rest of its’ workers on the construction of the road Ruvumu-Kibuye. The only insurance scheme available is the one referred to as “workmen compensation insurance” which provided a lump-sum of Frw 1,000,000 for each worker’ fatal accident. Had CRBC Ltd declared, affiliated and remitted social security contributions for its workers, Nzayikorera Jeanne, her child, and Nshimyumukiza Isacar’s parent would have been given the allowance meant for work-accident victim’s family. Nonetheless, such is not the issue for this case. [46] Considering all the above provided explanations, the court found that the best applicable insurance scheme would have been CRBC Ltd.’s affiliation into Social Security scheme and/ or the so-termed “workmen compensation insurance” scheme. [47] With regard to whether the paid damages are appropriate, the court found that lump sums payment is lawfully acceptable by the laws governing work-accident insurance coverage just as it

17 See the case of Hategekimana Bonaventrue v. Hayton Ltd rendered by the Supreme Court on the 14 April 2023, pagagraph 36.

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has been written by Arnaud Buisson Fizellier18, a scholar who argues that work-related accidents are compensated in lump sum payments, and the principle of proportional compensation procedure that is common in tort liabilities does not apply to work hazards19. Besides, social security insurance pays in proportions of the insured risks, and in the light of the insurance agreement as concluded with the insurer. The court has therefore found that SANLAM AG Plc has abode by the terms of “workmen compensation insurance” agreement it concluded with CRBC Ltd on the 23 January 2014, and it therefore has no more obligations. 2. 1.II.2. Determining the worthiness of the compensation sought by Nzayikorera Jeanne and her co-applicants, and persons responsible for its payment in case of relevance [48] After the Court found that the claim for the sought compensations was not supposed to base on the Presidential order n0 31/01 of the 25/08/2003 on compensations for body injury caused by motor vehicles, it decided not to look into the above issue. 3. 2.II.3. The merit of all civil damages requested for along this case [49] Counsel Nzabayezu Evariste representing Nzayikorera Jeanne and her co-applicants argues that his clients incurred a huge loss due to the follow-up costs of this case; right away from the Insurance Company to the Intermediate Court, and then to the High Court and the Supreme Court; arguing that in case his clients’ claim is found relevant, may the court order SANLAM AG Plc and CRBC Ltd to refund Nzayikorera Jeanne and her co-applicants Frw 4,000,000 for counsel fees, and Frw 1,500,000 for the litigation costs. [50] Counsel Rusanganwa Jean Bosco representing SANLAM AG Plc. argues that the claimants’ request for civil damages has no justification since their principal claim was found baseless. [51] And, in his counter-claim, Counsel Rusanganwa Jean Bosco argues that since SANLAM AG Plc. had been and is still being dragged into unnecessary lawsuits, he prays the court to order Nzayikorera Jeanne and her co-applicants to give SANLAM AG Plc. Frw 1,000,000 for the incurred case related expenses and Frw 1,000,000 for Counsel fee, adding to the charges ordered by the previous courts. [52] Counsel Nsabayezu Evariste representing Nzayikorera Jeanne and her co-applicants argues that SANLAM’s request for civil damages is unfounded, adding that his clients are lawfully entitled to the requested compensations. [53] Counsel Niyitegeka Eraste representing CRBC Ltd, has as well made a counter-claim arguing that the company he represents deserves Frw 2,000,000 for moral damage compensations for having been unjustly pulled into unnecessary court cases yet CRBC Ltd, as an employer, had

18 Arnaud Buisson Fizellier, La réparation intégrale du préjudice: rappel du principe et applications pratiques. Lettre d’information décembre 2006. www.bfpl-law.com/publications/la-reparation-integrale-du-prejudice- rappel-du- principe-et-applications-pratiques-lettre-dinformation-decembre-2006. 19 “la législation sur les accidents du travail et maladies professionnelles qui n’offre aux victimes qu’un régime de réparation forfaitaire, lequel ne peut assurer une réparation intégrale de la victime”.

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already faithfully fulfilled all its obligations. And he requested the claimants to refund CRBC Ltd Frw1,000,000 for counsel fees. [54] Counsel Nsabayezu Evariste representing Nzayikorera Jeanne and her co-applicants argue CRBC Ltd.’s request for damage compensation is unfounded since it is CRBC Ltd that caused the whole chaos when it concluded an unfair insurance agreement by which it conceded to pay the victim’s family with just Frw1,000,000 for each employee’s lethal work accident. DETERMINATION OF THE COURT: [55] Article 111of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, provides that “the claim for representation fees is incidental to the principal claim and it aims at repaying expenses incurred during judicial proceedings”. [56] The Court finds that Nzayikorera Jeanne and her co-applicants are the loosing parties in this case and are therefore liable to pay the damages claimed, while they themselves are not entitled to any of the damages they request. The Court holds that the parties entitled to damages are SANLAM AG Plc and CRBC Ltd; however, the amounts they claim are excessive, unsupported by evidence, and there is no indication that they undertook any exceptional steps in pursuing the case, as it was handled by their respective counsel. For these reasons, and in the Court’s considered discretion, each is awarded Frw 500,000 in counsel fees only. III. DECISION OF THE COURT [57] Holds that the application made by Nzayikorera Jeanne, Uwimpundu Marie, Mukashema Mamelithe, Ndengeyingoma Bosco, Tuyishimire Beatrice, Nyirangirimana Beathe, Nyiragasigwa Agnes and Bihoyiki Vestine, for review of judgment RCA 00017/2021/HC/KIG rendered by the High Court on the 25 November 2022, lacks merit; [58] Holds that the ruling on case RCA 00017/2021/HC/KIG rendered by the High Court on the 25/11/2022is stayed; [59] Orders Nzayikorera Jeanne, Uwimpundu Marie, Mekashema Mamelithe, Ndengeyingoma Bosco, Tuyishimre Béatrice, Nyirangirimana Béathe, Nyiragasigwa Agnès and Bihoyiki Vestine to jointly give SANLAM AG Plc and CHINA ROAD AND BRIDGE CORPORATION Ltd, each Frw 500,000 for counsel fee.