Tsotetsi v Mutual and Federal Insurance Company Ltd

The applicant, Elias Tsotetsi, was allegedly rendered quadriplegic in a motor vehicle accident on 25 February 1991. He claimed the accident was caused solely by the negligence of the driver of a vehicle in which he was a passenger, driven in the course of the owner’s business. In April 1994, he instituted an action in the Transvaal Provincial Division against Mutual and Federal Insurance Company Ltd, an appointed agent under the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989, claiming damages exceeding R1 million. The respondent relied on statutory provisions limiting passenger claims to R25 000 and further reducing claims where the injured person was a worker entitled to compensation under the Workmen’s Compensation Act. The applicant challenged the constitutional validity of these provisions and sought referral of the constitutional issue to the Constitutional Court.

The referral was held to be invalid, direct access was refused, and the matter was remitted to the Transvaal Provincial Division. No order as to costs was made.

The case affirms the principle of non-retroactivity of the Constitution in relation to vested rights and statutory liabilities arising before its commencement. It reinforces limits on constitutional challenges to pre-1994 causes of action and clarifies the strict requirements for referrals and direct access to the Constitutional Court.