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Identified or unidentified claims: which is the lesser of two evils?

Posted 01 October 2019

Jan-Gerhard Oosthuysen

As both drivers of the bakkies (quite coincidentally) sped off after the collisions (although they were both apprehended within a few days), in terms of the definition contained in the Road Accident Fund Act, (56 of 1996), these fell into the category of "hit-and-run" cases because the identity of both bakkie drivers (and owners) was unknown at the time.

The facts pertaining to both these collisions translate to the same situation, that is, they were both originally hit-and-run matters, and later became identifiable when the identity of the drivers and/or owners was later ascertained.

In this instance, both plaintiffs (the motorcycle riders), would have three years to institute a claim against the Road Accident Fund in terms of s23 of the Act, as an "identified" claim only prescribes three years after an accident takes place.

Paradoxically, an "unidentified" claim will prescribe within two years after the accident took place, in accordance with Regulation 2 of the Act.

Although a plethora of authors have already dealt with the two categories' prescription periods, the constitutionality of this is, however, yet to be tested. This article will not contribute to that debate.

One would be inclined to assume that the plaintiffs in both collisions would be in a more advantageous position if the identity of the negligent drivers were known. However, apart from the prescription periods, it is arguable that it is, in fact, more beneficial for a plaintiff to institute a claim against the Fund as an unidentified claim, for several reasons:

1. Section 17 of the Act assigns liability to the Fund in respect of the two different claim categories, and reads:

"17. Liability of the fund and agents. (1) The Fund or agent shall –

(a) subject to this act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established;

(b) subject to any regulation under section 26, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established, be obliged to compensate any person (the third party) for any loss or damage which he has suffered as a result of any bodily injury to himself or herself or the death of or 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 owner of the motor vehicle."

2. It is trite that both categories of accidents provided for in the Act require the accident to satisfy the definition of a "motor vehicle accident" and that the plaintiff must comply with the elements as set out in the Act in order to hold the Fund liable.

These elements are:

  • the claimant must be a person or a third party;
  • there must have been conduct; there must have been fault in the form of negligence, loss or damage; and
  • there must be a causal link between the conduct and the loss or damage suffered.

3. There is a significant difference between s17(1)(a) dealing with identified wrongdoers and s17(1)(b) which deals with unidentified wrongdoers. Section 17(1)(a) leads with the phrase "subject to this act", whereas s17(1)(b) leads with the phrase "subject to any regulation"; this may seem like a minor difference but the technical implications are far reaching.

4. Simply speaking and if one were to interpret the section literally, where a plaintiff claims in terms of s17(1)(a) he/she must comply holistically with the rest of the Act. In other words, where the Fund's liability has been established in terms of s17(1)(a), the claimant must be cognisant of the other sections of the Act to which it is subject. For example: a s17(1)(a) claim for compensation can be limited or excluded ipso facto by s18 or s19 of the Act.

5. On the other hand, a claim instituted in terms of s17(1)(b), interpreted literally, must only comply with, and be mindful of, the Regulations of the Act. A plaintiff, therefore, need only establish the Fund's liability in terms of s17(1)(b), and is not required to abide by the rest of the Act, but only the Regulations and, more specifically, Regulation 2 which deals with the prescription period in hit-and-run matters.

6. This has the procedural effect that a hit-and-run matter should be instituted against the Fund within two years of the accident. However, the wording of s17(1)(b) does not bind s17(1)(b) to the rest of the Act. The implication is that a claim in terms of s17(1)(b), technically, cannot be limited or excluded by s18 or s19. Whether this was an oversight or done intentionally by the legislator is left open to interpretation and is yet to be tested in court.

This situation invites a legal interpretation of an Act, which would be a debate on its own. On the one hand the Act states nowhere in its preamble, definitions, or in the stated object of the fund, that the Act must be read in a holistic way in addition to the literal interpretation of both s17(1)(a) and 17(1)(b), as already stated.

On the other hand, it may be argued that s18 and s19 refer to the interpretation of s17 as a whole. Examples of this would be:

"Section 18. Liability limited in certain cases. –

(4) The liability of the Fund or an agent to compensate a third partyfor any loss or damage contemplated in section 17 which is theresult of the death of any person shall in respect of funeralexpenses be limited to the necessary actual costs to cremate thedeceased or to inter him or her in a grave."

"Section 19. Liability excluded in certain cases. –

The Fund or an agent shall not be obliged to compensate any personin terms of section 17 for any loss or damage-…"

Another argument supporting the interpretation of s17(1)(b) being subject to the import and effect of the Act as a whole would be the fact that Regulation (1)(a) refers the claimant to s24 of the Act. Regulation (1)(a) reads:

"A claim for compensation referred to in s17(1)(b) of the Act shall be sent or delivered to the Fund in accordance with the provisions of section 24 of the Act, within two years from the date upon which the cause of action arose."

This has the effect that a claimant must assume a close nexus between s17(1)(b) and the rest of the Act and not just the regulations.

In conclusion, even though hit-and-run cases have the hurdle of limiting the period (to two years) in which to institute a claim against the Fund, hit-and-run matters arguably have the advantage of not being subject to limitation or exclusion by the Act. This, however, is unlikely to have been the intention of the legislator and will quite likely not hold water should it be tested in court.

Article published in Without Prejudice October 2019