Antonica Moloi and Others v Road Accident Fund

Three plaintiffs (appellants) acting as mothers and natural guardians of minor children instituted claims against the Road Accident Fund (respondent) for compensation arising from injuries suffered by the minors in collisions with unidentified motor vehicles on 30 September 1994. The motor vehicles and their drivers could not be identified. The claims were delivered to the Fund in October or November 1996, more than two years after the incidents. The Fund raised a special plea that the claims had prescribed under Regulation 3(2)(a)(i) of the Multilateral Motor Vehicle Accidents Regulations, 1989, which required claims involving unidentified vehicles to be delivered within two years, and Regulation 3(2)(a)(ii), which provided that this time limit applied to all claimants irrespective of legal disability (including minors). The plaintiffs contended that insofar as the regulation purported to allow prescription to run against minors, it was ultra vires, and that sections 13 and 16 of the Prescription Act 68 of 1969 applied to prevent prescription running against the minors.

• Whether Regulation 3(2)(a)(ii) of the Multilateral Motor Vehicle Accidents Regulations, 1989, which provided that prescription runs against minors in claims involving unidentified vehicles, was ultra vires the enabling provision in section 6 of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989
• Whether the regulations made under section 6 of Act 93 of 1989 have the status of an Act of Parliament for purposes of section 16 of the Prescription Act 68 of 1969
• Whether sections 13 and 16 of the Prescription Act applied to prevent prescription running against minors in claims against the Fund involving unidentified vehicles
• Whether the two-year period in Regulation 3(2)(a)(i) constituted a suspensive condition rather than a prescriptive period
• Whether the Minister had power under section 6 of Act 93 of 1989 to impose conditions that limited or rendered conditional the unconditional liability created by Article 40 of the Agreement

The appeal was upheld with costs, including costs of two counsel. The order of the High Court (Witwatersrand Local Division) was set aside and replaced with an order dismissing the defendant's special plea with costs.

Regulations made under section 6 of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 do not have the status of an Act of Parliament for purposes of section 16 of the Prescription Act 68 of 1969, and therefore cannot validly oust the provisions of sections 13 and 16 of the Prescription Act which protect minors from prescription. The definition of 'this Act' in section 1 to include regulations applies only for interpretation purposes within Act 93 of 1989 and does not substantively elevate regulations to the status of an Act of Parliament. The Minister's power under section 6 to make regulations 'to give effect to any provision of the Agreement' is purely regulatory and does not authorize the imposition of conditions or limitations that restrict or render conditional the unconditional liability created by Article 40 of the Agreement. Regulation 3(2)(a)(ii), insofar as it purports to allow prescription to run against minors in claims involving unidentified vehicles, is ultra vires section 6 of Act 93 of 1989.

The Court noted difficulty with aspects of the earlier decision in Mbatha v Multilateral Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA), observing that in that case counsel did not rely on section 16 of the Prescription Act and the Court did not consider that aspect. The Court observed that while the Mbatha decision referred to a 'so-called condition', it later treated the two-year period as a prescriptive period rather than a true suspensive condition. The Court also made general observations about the purpose of the Agreement being to introduce a uniform system of compensation throughout the Republic of South Africa and the TBVC states, and that this purpose would be defeated if the Minister could use regulations applicable only in one territory to cut down the unconditional liability provided in Article 40.

This case is significant in South African law for clarifying the relationship between delegated legislation (regulations) and primary legislation for purposes of prescription. It establishes that regulations do not automatically have the status of Acts of Parliament unless expressly given such status by the enabling statute. The judgment protects the rights of minors by confirming that the protections in the Prescription Act apply unless validly excluded by an Act of Parliament itself (not mere regulations). It also limits the scope of ministerial regulation-making powers, confirming that such powers are purely regulatory and cannot be used to impose prohibitions or conditions that restrict substantive rights created by primary or equivalent legislation. The case reinforces the principle established in Padongelukkefonds v Prinsloo that the Minister cannot use regulations to curtail the broad compensatory scheme established by the Agreement. The judgment is important for Road Accident Fund litigation involving claims by minors and unidentified vehicles.