Nekokwane v Road Accident Fund

The applicant, Ndishavhelafhi Thomas Nekokwane, was injured on 3 June 2014 at Tshavhalovhedzi, Limpopo, when the front loading basket of a Tractor-Loader-Backhoe (TLB) fell on his feet. At the time of the accident, the TLB was parked with no driver in the vehicle and no one was operating the hydraulic system on which the loading basket worked. The person who parked the TLB had left the loading basket with one end in the air and the other resting on the ground. The applicant testified (relying on hearsay) that although the TLB's engine was not on at the time, the ignition key was left in an "on" setting, which meant the hydraulic pump operating the loading basket was turned on. The applicant claimed damages for personal injuries from the Road Accident Fund under the Road Accident Fund Act 56 of 1996. His claim was dismissed by the High Court in Limpopo Local Division, Thohoyandou, on 20 July 2017. The trial court made adverse factual and credibility findings against the applicant, noting that he had given three contradictory versions under oath. The Supreme Court of Appeal subsequently dismissed an application for leave to appeal.

• Whether the Constitutional Court had jurisdiction to hear the appeal
• Whether the circumstances under which the applicant sustained injuries fell within the ambit of sections 17 and 20 of the Road Accident Fund Act 56 of 1996
• Whether section 20(2) of the RAF Act, which deems a person to be driving when a vehicle 'moves from that place as a result of gravity', applied to the falling of a loading basket without the vehicle's tyres rolling from their stationary position
• Whether the trial court's interpretation of section 20(2) complied with section 39(2) of the Constitution's interpretative injunction to promote the spirit, purport and objects of the Bill of Rights
• Whether a misapplication of legislation gives rise to a constitutional issue sufficient to ground Constitutional Court jurisdiction

The application for leave to appeal was dismissed. There was no order as to costs.

The binding legal principles established by this case are: (1) The Constitutional Court does not have jurisdiction to determine appeals of fact only; (2) In order for the Constitutional Court to entertain an appeal, it must have facts before it showing that the matter falls within its jurisdiction under section 167(3)(c) of the Constitution; (3) Where it is clear that the substance of the contest between parties is purely factual, it cannot be said to raise a constitutional issue purely because an applicant asserts that it does; (4) A mere assertion that a lower court failed to comply with section 39(2) of the Constitution's interpretative injunction when interpreting legislation does not, without more, create a constitutional issue sufficient to ground the Constitutional Court's jurisdiction; (5) Misapplication of legislation does not ordinarily give rise to a constitutional issue; (6) Where factual findings, including adverse credibility findings, have been made by a trial court and the facts alleged by an applicant were held not to have been established, the Constitutional Court cannot assist the applicant by accepting those facts at face value to determine the potential existence of a constitutional issue.

The Court made passing observations about the trial court's approach to interpreting section 20(2) of the Road Accident Fund Act, which required that "movement as a result of gravity" must have caused the TLB's tyres to have rolled from its stationary position. While the Constitutional Court did not formally endorse or reject this interpretation (as it lacked jurisdiction to do so), the judgment suggests that even if this interpretation were questionable, it would not be sufficient to create constitutional jurisdiction where the factual basis for the claim was fundamentally flawed. Froneman J also noted that there was "no pleaded case or evidence that the insured driver ought to have foreseen the reasonable possibility that the hydraulic cylinder would fail and that he failed to take steps against this failure," suggesting that proper pleading and evidence of negligence elements would have been necessary regardless of the jurisdictional issue. The Court's reference to "the simplest stratagem by means of which the unscrupulous would have their issues ventilated in this Court under the guise that they raise constitutional issues" (quoting Mbatha v University of Zululand) indicates judicial concern about attempts to misuse constitutional claims to gain access to the Constitutional Court.

This case reinforces important principles regarding the Constitutional Court's jurisdiction and access to the Court. It emphasizes that the Constitutional Court does not have jurisdiction to determine appeals of fact only and will not overturn factual findings made by trial courts unless there is a genuine constitutional issue at stake. The case demonstrates that parties cannot circumvent the Constitutional Court's jurisdictional limitations by simply asserting that their factual dispute raises constitutional issues, particularly regarding statutory interpretation. It confirms that where the substance of the contest between parties is purely factual, it cannot be transformed into a constitutional matter merely by alleging a failure to comply with section 39(2) of the Constitution's interpretative injunction. The judgment serves as a warning against unmeritorious attempts to access the Constitutional Court and reinforces the principle that applicants must place proper facts before the Court demonstrating that the matter falls within its jurisdiction. It is also an example of how contradictory evidence and adverse credibility findings can be fatal to a party's case and cannot be remedied on appeal to the Constitutional Court.