Combrink and Another v Road Accident Fund and Another (31303/2008; 31306/2008) [2015] ZAGPPHC 760 (5 November 2015)

IN THE HIGH COURT OF

SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

case Number: 31303 / 2008

31306 / 2008

NOT REPORTABLE

NOT OF INTEREST TO OTHER

JUDGES

REVISED

5/11/2015

In the matter between:

RUAN KRUGER COMBRINK

1ST PLAINTIFF

MARNUS COMBRINK

2ND PLAINTIFF

And

ROAD ACCIDENT FUND

1ST DEFENDANT

THE MINISTER OF

TRANSPORT

2ND DEFENDANT

JUDGMENT

Fabricius J,

In these proceedings I was asked to only adjudicate on the following Stated Case, and to postpone any hearing hearing on quantum sine die.

"Stated Case:

A. Common Cause Facts:

1.

The First Plaintiff, Ruan Kruger Combrink, was born on 6 January 1984.

2.

The Second Plaintiff, Marnus Combrink, was born on 26 January 1990.

3.

The Plaintiffs' claims are for loss of support which originated from the passing away of their father, Jan Petrus Combrink, in a motor vehicle accident on 5 May 2000.

4.

The aforesaid accident was caused by an unknown driver of an unknown vehicle.

5.

On 21 May 2013 the merits of the matter excluding the question of prescription and the constitutional challenge were separately decided by the above Honourable Court and in favour of the Plaintiffs.

6.

The collision having occurred on 5 May 2000, the regulations promulgated under section 26 of the Road Accident Fund Act 56 of 1996 and published in Government Gazette 17939 of 25 April 1997 (hereinafter the "Regulations') are applicable.

7.

The claims of both Plaintiffs were lodged with the Road Accident Fund on 17 July 2000. Both Plaintiffs have therefore complied with Regulation 2 (3).

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8.

Summons on behalf of both Plaintiffs was issued on 4 July 2008.

B. Issues to be adjudicated upon:

9.

9.1

Whether the claims of the Plaintiffs have prescribed due to non-compliance with Regulation 2 (4) as alleged in the Road Accident Fund's Special Plea; or

9.2

Whether the provision in Regulation 2 (4) that a prescription period of five years runs "irrespective of any legal disability to which the Plaintiff may be subject and notwithstanding anything to the contrary in any law", alternatively, the whole of Regulation 2 (4), is ultra vires, alternatively, invalid, alternatively, unconstitutional, for one or more of the following reasons (as pleaded in Plaintiff's Replication):

9.2.1. It is not in accordance with object of the Road Accident Fund as prescribed in section 3 of the Road Accident Fund Act 56 of 19 9 6;

9.2.2. It is not in accordance with the general scheme relating to the prescription of third party claims as set out in section 2 3 of the Road Accident Fund Act 56 of 199 6;

9.2.3. It is not in accordance with the provisions of the Prescription Act 68 of 1969;

9.2.4. It is unreasonable in that it arranges for prescription to run against a minor;

9.2.5. It does not accord with the constitutional doctrine of legality in that, as set out above, it:

9.2.5.1. Conflicts with Acts of Parliament; and

9.2.5.2. Is unreasonable;

9.2.6. It unjustifiably impairs the constitutional rights of the Plaintiff as contained in sections 9, 28 and 34 of the Constitution of the Republic of South Africa 108 of 2006.

9.3

Whether in the event of a finding that Regulation 2 (4) is unconstitutional in whole or in part, the appropriate remedy to be granted and the impact of this (if any) on whether each of the Plaintiffs' claims have prescribed

On behalf of the Plaintiffs, it was argued that the following principles apply when considering the validity of regulations:

1.1

The Minister must act lawfully and the regulations must survive scrutiny for conformity with the usual requirements of legality and reasonableness;

1.2

Regulations could not widen the purpose and object of the relevant Act and could obviously not be in conflict therewith;

1.3

The purpose of the Act is to provide the greatest possible protection to the dependants of persons killed;

1.4

Where regulations are unreasonable they would be ultra vires. See: Engelbrecht v RAF 2007 (6) SA 926 (CC) at 103 to 104.

It was contended that the underlying basis of the Plaintiff's attack on the validity of Regulation 2 (4), was that the regulation was unreasonable as it required prescription to run against a minor in a claim against an unknown vehicle. This was in contrast to s. 23 ( 2 ) (a) of the Act which arranged that in claims against known vehicles, prescription did not run against a minor. I was also referred to Santam v Roux 1978 (2) SA 856 (A) at 865 F - G, where it was said that the policy of our law, in the given context, was that youthful persons had to be protected especially against their own immaturity of judgment. Further,

one had to consider the provisions of s. 28 (2) of the Constitution of the Republic of South Africa, Act 108 of 1996 as amended, which states that a child's best interests are of paramount importance in every matter concerning the child. Accordingly, it was contended that Regulation 2 (4) was in conflict with these general principles and was therefore unreasonable. Regulation 2 (4) also brought about a considerable discrepancy within the structures of the Third Party Legislation, particularly when regard was had to the fact that the prescription regime applying to claims against known vehicles was generous compared to that in the Prescription Act. The Road Accident Fund Act did not contain a provision similar to s. 13 (1) (i) of the Prescription Act, but allowed for the full period of prescription to be suspended during minority. Accordingly, the full three years for lodgement, and five years for summons, only commenced upon a person obtaining majority.

See: RAF vs Scholtz 2003 (5) SA 326 (SCA).

It was contended that transplanted to the present matter it would mean that, with regards to the claim of the First Plaintiff, the five year period would only commence running upon him obtaining the age of 21, which occurred on 6 January 2005, thereby leaving him five years until the date before 6 January 2010 to institute action. Action was instituted in 2008 in the present case. This was a period of approximately five years longer than the First Plaintiff would have had should Regulation 2 (4) apply, which required that summons had to be issued within five years of the date of the occurrence being 8 May 2000, thus before 8 May 2005.

Regulation 2 (4) therefore ought to be found to be invalid and unconstitutional on the basis as set out also in the Plaintiff's replication.

The issue which remained was how the matter ought to be dealt further, having regard to par. 9.3 of the Stated Case. This aspect in practice would only affect the claim of the First Plaintiff, as the claim of the Second Plaintiff would not have prescribed on any construction. In this regard the following further submissions were made:

4.1

The Second Defendant has already amended the regulations, and in its present state the five year period does not specifically run against minors;

4.2

If regard was had to the principle that the regulations were to be interpreted in the light of the Act, the prescription scheme already chosen by the legislature, and set out in s. 23, with its generous prescription periods, ought to apply in the present matter as well. Once it was accepted that prescription would not run against a minor, the issue could be resolved by excising the words referred to in paragraph 4.4 of the replication from Regulation 2 (4). Co-reading of the Act with the regulations would then have the effect that the full five year period of prescription would only have commenced with regard to the First Plaintiff's claim from the date that he obtained majority, being 6 January 2005. The following would therefore be excised from the provisions of Regulation 2 (4): "Irrespective of any legal disability to which the Plaintiff may be subject, and notwithstanding anything contrary in any law".

As far as the Defendants' contention was concerned, that the regulation ought to be made subject to the provisions of the Prescription Act, which would have the effect that due to the wording of s. 13 (1) (i), a claim would have prescribed within a year after the First Plaintiff reached majority, thus the day before 6 January 2006 (a date prior to the issue of summons), this would be an undesirable approach in that it was not in accordance with the existing prescription scheme set out in s. 23 of the Road Accident Fund Ac and it would not be in accordance with the basic principle applicable to Third Party Legislation that the widest possible protection ought to be given to a claimant. It was accordingly sought that Defendants' Special Pleas ought to be dismissed with costs.

First Defendant's Argument:

The Plaintiffs' respective summons were only issued in 2008, after they had both become adults. (M. Combrink turned 18 years of age on 2 6 January 2008, and the Children's Act 38 of 2005 provided that 18 years of age would be the age of majority. This Act came into force on 1 July 2007. Prior to the operative date this Act, the Age of Majority Act 52 1972 provided that the age of majority was 21 years of age. R. Combrink thus reached the age of majority on 6 January 2005, when he turned 21). Regulation 2 (4) of the RAF Regulations of 1997, as it presently stands, permitted the operation of prescription inter alia against minors. The consequence of this provision would be that both of the Combrinks' claims had prescribed. The RAF filed special pleas of prescription to the Combrinks' claims on this basis but, as I have pointed out, in replicating to the Special Plea,

the Plaintiffs argue inter alia that to the extent that Regulation 2 (4) is permitted to run against minors and persons suffering from legal disability, it is ultra vires certain provisions of the Prescription Act 68 of 1969 (•The Prescription Act"). The Plaintiffs therefore asked that Regulation 2 (4) be declared invalid in terms of s. 172 of the Constitution. In this context, the First Defendant's argument was as follows:

6.1

It agreed with Plaintiffs that Regulation 2 (4) was invalid insofar as it permitted prescription to run against minors and persons suffering from legal disability. To that extent it had to be declared invalid.

6.2

First Defendant however contended that this did not require that the whole of Regulation 2 (4) be struck down. Rather, in accordance with the jurisprudence of the Constitutional Court, a more precise remedy could be granted which cured the constitutional defect.

In the context of the applicable regulatory framework, the following submissions were made concerning the RAF Act.

7 .1

Section 2 of the RAF Act establishes the RAF as a juristic person. The RAF' s object, under section 3 of the RAF Act, "shall be the payment of compensation in accordance with this Act for loss or damage wrongfully caused by the driving of motor vehicles". Pursuant to section 17 ( 1) of the RAF Act, the RAF or its agent shall be obliged to - "compensate any person (the third party) for loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, 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".

7.2

The RAF Act makes provision for compensation to be paid whether or not the driver who caused the accident is identified or unidentified. Section 2 3 of the RAF Act deals with the prescription of RAF claims in respect of accidents involving identified vehicles. In essence, section 2 3 of the RAF Act provides for a prescription regime whereby a claimant has three years from the time that the cause of action arises to lodge his or her claim and, if this is done, it provides for a further two years for summons to be issued. However, critically, section 2 3 of the RAF Act provides clearly that, in respect of minors, persons detained as patients in terms of any mental health legislation or persons under curatorship, "[p]rescription of a claim for compensation referred to in subsection ( 1) shall not run".

7.3

Whilst this is the position under the RAF Act in as far as identified drivers are concerned, the RAF Act is silent as to the regime that should apply where accidents are caused by drivers who remain unidentified. It is silent, that is, save to state that the RAF will be liable to compensate all such claims "subject to any regulation made [by the Minister] under section 2 6 of the RAF Acf . It is for this reason that the Minister of Transport ("the Minister'') has since exercised his regulation-making power. Pursuant to section 2 6 of the RAF Act, the Minister "may make regulations regarding any matter that shall or may be prescribed in terms of [the RAF] Act or which it is necessary and expedient to prescribe in order to achieve or promote the object of the RAF Act.

7.4

In respect of hit-and-run cases, the Minister has since attempted to fill the legislative gap. Though they have now been superseded, the regulations promulgated by the Minister which refer in regard to the Combrinks' case are the Regulations.

7.5

Regulation 2 (3) of the Regulations permits for a period of two years, calculated from the date on which the claim arose, for claim for compensation to be lodged with the RAF.

7.6

Regulation 2 (4) of the Regulations (" Regulation 2 (4}' ), as it presently stands, regulates the period thereafter. Unlike section 2 3 of the RAF Act, Regulation 2 (4) does permit for the operation of prescription against minors and persons suffering from legal disabilities. Regulation 2 (4) provides as follows:

"The liability of the Fund in respect of any claim sent or delivered to it as provided for in subregulation ( 3 ) shall be extinguished upon the expiry of a period of five years from the date upon which the claim arose, irrespective of any legal disability to which the third party concerned may be subject and notwithstanding anything to the contrary in any law, unless a summons to commence legal proceedings has been properly served on the Fund before the expiry of the said period."

(The underlined wording above is referred to as the "legal disability provision" of Regulation 2 (4)}.

7.7

The RAF accepts that the legal disability provision above is constitutionally untenable. Unlike the regime provided for under section 2 3 of the RAF Act, Regulation 2 of the Regulations permits prescription to begin running and, notionally, even to run its completion against minors or

disabled persons who are affected by hit-and-run accidents.

The Prescription Act:

8.1

Whilst section 23 of the RAF Act and Regulation 2 of the Regulations regulate the question of prescription in regard to claims under section 17 of the RAF Act, the Prescription Act, as section 16 ( 1) thereof suggests, regulates the prescription debts in general:

"save insofar as they are inconsistent with the provisions of any Act of Parliament which prescribes a specified period within which a claim is to be made or an action is to be instituted in respect of a debt or imposes conditions on the institution of an action for the recovery of a debt."

8.2

The provisions of the Prescription Act, in as far as they concern the periods for prescription of debts as against minors and disabled persons, are significantly more generous than Regulation 2 (4).

8.3

Under the Prescription Act, 'debts' arising at a time where the creditor is a minor or legally disabled are subject to extended prescriptive periods. In this regard, sections 13 (1) (a) and (i) of the Prescription Act refer. Read together, these provisions provide as follows:

"If ... the creditor is a minor or is insane or is a person under curatorship or is prevented by superior force including any law or any order of Court from interrupting the running of prescription as contemplated in section 15 ( 1) ... [and] the relevant period of prescription would, but for the for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment ... has ceased to exist, the period of prescription shall not be completed before a year has elapsed after the day [on which prescription would have been completed but for the impediment]."

8.4

The effect of sections 13 ( 1) (a) and (i) of the Prescription Act on 'debts' that fall within its purview is thus that the prescriptive period, insofar as minors and legally disabled persons are concern, will be completed one year after the minor or disabled person concerned reaches the age of majority.

Having regard to the stated facts and the relevant regulatory legislation, it was submitted on behalf of First Defendant and in the context of decisions such as Barkhuizen vs Napier [2007] ZACC 5; 2007 (5) SA 323 (CC) and Engelbrecht vs RAF supra, that there could be no principled constitutional objection to the five-year time-limit in Regulation 2 (4), when applied to persons without any legal disability. However, the fact that this five-year limit was to apply "irrespective of any legal disability to which the third party concerned may be subject', was an altogether different matter from a constitutional perspective. The approach that a minor, in particular, could have his or her claim prescribe before becoming an adult appeared to be entirely at odds with long entrenched principles of our law. It was at odds with s. 23 ( 2 ) of the RAF Act which provided that prescription of a claim for an identified vehicle accident "shall not run" against a minor. It is also at odds with s. 13 (1) (a) of the Prescription Act which provided that the claim of a minor would not prescribe until a year after the minor became an adult. It was further at odds with Roman-Dutch law which provided that prescription did not run against a minor, even when the minor had a guardian. In this context reliance was then placed on President Insurance Company Ltd vs Yu Kwam 1963 (3) SA 766 (A) at 773 F - G.

Most importantly however, this provision was at odds with the approach of the Constitutional Court in the time-bar cases. In this context I have already referred to the Engelbrecht decision supra. The notion that a cause of action can come to a minor's knowledge was therefore plainly unsustainable, and this did not change even where a minor had a legal guardian after the parents died. The constitutional validity of a provision is considered objectively, and not with regard to a minor's particular circumstances.

See for instance Ferreira vs Levin N.O. and Others 1996 (1) SA 984 (CC) at par. 26 and 158.

Under all the circumstances it was conceded that Regulation 2 (4) was invalid insofar as it permitted prescription to run against minors and persons suffering from legal disability.

10.

A just and equitable remedy:

Section 172 (1) of the Constitution is relevant in this context. It provides that where a Court decides a constitutional matter, it must declare any law that is inconsistent with the Constitution to be invalid "to the extent of its inconsistency". When a law is only in part inconsistent with the Constitution, it may sever the good from the bad and declare only the latter to be invalid. This approach was mandated by the Ferreira vs Levin decision supra at par.

131. It was also reaffirmed in Van Rooyen and Others vs The State and Others 2002 (5) SA 246 (CC) at par. 88.

11.

The remedy proposed by First Defendant:

It was submitted that the deficiency that arises in Regulation 2 (4) could be cured by severing the offending portion of the regulation and reading-in the underlined words below:

“ Subject to sections 13 (1) (a) and (i) of the Prescription Act 68 of 1969, the liability of the Fund in respect of any claim sent or delivered to it as provided for in subregulation (3 ) shall be extinguished upon the expiry of a period of five years from the date upon which the claim arose, irrespective of any legal disability to which the third party concerned may be subject and notv1ithstanding anything to the contrary in any law, unless a summons to commence legal proceedings has been properly served on the Fund before the expiry of the said period.”

12.

It was submitted that an order granting this relief would be just and equitable as it would not only resolve the invalidity that arose in respect of s. 34 of the Constitution, but it would also resolve any ultra-vires problem that might arise. The severance of the legal disability provision, coupled with the reading-in of this proposed wording, would obviate the concern raised by the Constitutional Court in Engelbrecht supra as it would have the effect of harmonising Regulation 2 (4) with s. 16 (1) of the Prescription Act. Furthermore, this order would only apply to pending cases and not to completed cases.

13.

The impact of the claim on Second Plaintiff:

If Regulation 2 (4) was declared invalid, the claim by M. Combrink would not have prescribed and must be upheld. The reasons for this would be the following:

13.1

M. Combrink was born on 2 6 January 1990. He became a major on 26 January 2008.

13.2

The accident occurred on 5 May 2000.

13.3

The claim was lodged timeously and within the two-year period prescribed by Regulation 2 (3), on 17 July 2000;

13.4

The summons was issued outside the relevant five-year period prescribed by Regulation 2 (4), on 4 July 2008;

13.5

The summons was however issued several months before M. Combrink's claim would have prescribed under sections 13 (a) and (i) of the Prescription Act, and accordingly,

13.6

If the proposed wording were read into Regulation 2 (4), M. Combrink would have a valid claim. First Defendant therefore accepted that M. Combrink's claim must be upheld. As I have said, the quantum of that claim was not presently before me and would have to be resolved by further proceedings if agreement could not be reached on this topic.

14.

The impact of the claim on the First Plaintiff:

The position in respect of R. Combrink is different. Even if Regulation 2 (4) is declared invalid to the extent mentioned above, and remedied, his claim has still prescribed whatever regime was applicable, be it the Prescription Act, the RAF Act or decision proposed by First Defendant, so it was argued. This is for the following reasons:

14.1

Although the facts that gave rise to his claim are identical, the difference that arises concerns his age;

14.2

He was born on 6 January 1984. Therefore, even applying the rule that a child became an adult turning 21 (which was the position then), he attained the age of majority on 6 January 2005.

14.3

His summons was issued well over three years thereafter, on 4 July 2008. Thus, on any basis, his claim has prescribed. It is indeed unfortunate that R. Combrink would have been part of a successful constitutional challenge, but would not have achieved success in his claim. He did however have an adequate opportunity to lodge his claim before it prescribed and he issued summons more than three years after becoming an adult. It was also contended, and I agree with that submission, that the time limits such as those imposed by the Prescription Act are necessary and serve good and legitimate purposes in the context of proper administration of justice. See for instance Moh/omi v Minister of Defence 1997 (1) SA 124 (CC). The constitutional validity of s. 16 (1) of the Prescription Act was not challenged. It may well be, but I cannot obviously comment on it, that R. Combrink may have a claim against his Attorney for professional negligence in the present context.

15.

I agree with the submissions made on behalf of First Defendant and the reasoning that underlie those submissions. They are in line with the over-all legislative scheme that has been referred to, and would thus be of general application. Plaintiffs’ suggested remedy is too individualized in this context and is aimed solely to uphold First Plaintiff's claim.

16.

Accordingly the following order is made:

1. “To the extent that Regulation 2 (4) of the RAF Regulations 1997 permits prescription to run "irrespective of any legal disability to which the third party concerned may be subject and notwithstanding anything to the contrary in any law" ("the legal disability provision"), it is hereby declared to be inconsistent with section 34 of the Constitution, and it is accordingly invalid.

2. In terms of section 172 (1) (b) of the Constitution, it is ordered that the order in paragraph 1 shall operate prospectively and only to pending cases, and it shall not affect any cases against the RAF that have not been finalised as at the date of this order.

3. To remedy the defect set out in paragraph 1 above, it is hereby declared that the legal disability provision is severed from Regulation 2 (4) of the RAF Regulations, and it is declared that the underlined wording below shall be read into Regulation 2 (4), such that, from the date of this order, it shall read as follows: “Subject to sections 13 (1 ) (a) and (i) of the Prescription Act 68 of 1969, the liability of the Fund in respect of any claim sent or delivered to it as provided for in subregulation ( 3 ) shall be extinguished upon the expiry of a period of five years from the date upon which the claim arose, irrespective of any legal disability to which the third party concerned may be subject and notwithstanding anything to the contrary in any law, unless a summons to commence legal proceedings has been properly served on the Fund before the expiry of the said period.””

4. In the light of the above –

4.1. The RAF's special plea against R. Combrink is upheld; and

4.2. The RAF's special plea against M. Combrink is dismissed.

5. No order as to costs is made.

______

JUDGE H.J FABRICIUS

JUDGE OF THE GAUTENG HIGH COURT, PRETORIA DIVISION

Case number: 31303 / 2008

Counsel for the Plaintiffs: Adv C. Van Jaarsveldt

Instructed by: PAS Attorneys

Counsel for the Defendants: Adv M. Stubbs

Instructed by: Hogan Lovells

Date of Hearing: 9 October 2015

Date of Judgment: 5 November 2015 at 10:00