Jongisile Fonjana v Multilateral Motor Vehicle Accident Fund and Road Accident Fund

On 1 September 1996, the appellant, a permanent member of the South African National Defence Force (SANDF) stationed in East London, sustained bodily injuries when the motor vehicle in which he was a passenger overturned. He came off duty on Friday 30 August 1996 and was to resume duties on Monday 2 September 1996 at 07:30. The accident occurred on Sunday evening at about 22:00. The appellant instituted action for damages in the Ciskei High Court against the Multilateral Motor Vehicle Accident Fund (first respondent) and alternatively the Road Accident Fund (second respondent). The second respondent conceded liability in principle but argued that its liability was limited to R25,000 in terms of article 46 of the Schedule to the Motor Vehicle Accident Fund Act 93 of 1989, which limited passengers' claims. The appellant contended he was exempt from this limitation because he was 'rendering military service' at the time of the accident as contemplated by the exception in article 46.

• What is the meaning of the phrase 'rendering military service' in article 46 of the Schedule to the Motor Vehicle Accident Fund Act 93 of 1989?
• Does the phrase 'rendering military service' require that the passenger be engaged in active military service or combat service at the time of the accident?
• Is permanent membership of the SANDF sufficient to constitute 'rendering military service' for purposes of the exception to the limitation on passengers' claims?
• Must there be a link or connection between the passenger's conveyance and his military service for the exception to apply?

The appeal was upheld with costs. The order of the court a quo was set aside and replaced with an order that: (a) The plaintiff is exempted from the limitations imposed on a passenger by article 46 of the Schedule to Act 93 of 1989; and (b) The second defendant (Road Accident Fund) is ordered to pay the plaintiff's costs.

The binding legal principle established is that the phrase 'rendering military service' in article 46 of the Schedule to the Motor Vehicle Accident Fund Act 93 of 1989 (and by extension, the corresponding provision in section 18(1) of the Road Accident Fund Act 56 of 1996) must be interpreted in its ordinary sense with reference to the Defence Act 44 of 1957. So interpreted, a passenger is 'rendering military service' if, at the time of the accident, he or she was in the service of the military and under the control and discipline of military authorities. Permanent membership of the SANDF is sufficient to satisfy this requirement. The exception does not require that the passenger be engaged in active military service, combat service, or that there be any connection between the passenger's conveyance and his or her military service. The purpose of the exception is not only to protect military passengers but also to protect motorists who provide transport to soldiers, and this dual purpose informs the interpretation of the provision.

The court made several non-binding observations. First, it noted that if the appellant had been established to be returning to his base when the accident occurred, this would not have affected the outcome because the purpose of the journey is irrelevant to whether someone is rendering military service. Second, the court observed that any construction requiring additional prerequisites beyond being a soldier would operate unfairly against motorists, who would often have no way of knowing whether such requirements had been met, as demonstrated by the legislative history where requirements relating to authorised leave and uniforms were progressively removed. Third, the court commented that the way to remedy perceived unfair discrimination would be to extend rights to those discriminated against rather than remove rights from those who qualify. Fourth, the court noted that the criterion of 'something akin to course and scope of military service' suggested by the respondent was too vague to be sensibly applied in practice. The judgment also contains extensive discussion of the legislative history showing the evolution of the exception and the progressive removal of additional requirements that proved unworkable.

This case establishes important principles regarding the interpretation of exceptions to passenger claim limitations in motor vehicle accident legislation. It clarifies that 'rendering military service' for purposes of exemption from passenger claim limitations is not confined to active or combat service, but extends to all permanent members of the SANDF who are under military control and discipline. The judgment demonstrates the purposive approach to statutory interpretation, considering not only the protection of military passengers but also the policy objective of protecting motorists who assist soldiers by providing transport. The case illustrates how legislative history and the practical implications of different interpretations inform statutory construction. It also shows the limits of using constitutional arguments about unfair discrimination to restrict statutory benefits, particularly where the discrimination could be remedied by extending rather than limiting rights.