Road Accident Fund v Samuel Feli Thugwana

The respondent (plaintiff) was injured on 17 November 1998 on the Springs/Kwa Thema Road when a motor vehicle of unknown identity collided with him while he was a pedestrian. He remained in hospital for 5-6 weeks. While in hospital, a policeman visited and he gave oral details of the accident. In February 1999 he visited the Springs police station to check if the accident had been reported (it had not). On 28 February 2000, assisted by Joshua Khoza (an ex-policeman), he swore an affidavit at Delmas police station but gave it to his attorney rather than submitting it to police. He swore a second affidavit on 14 November 2000 which his attorney sent to the appellant with his compensation claim. A third affidavit was sworn on 29 August 2002, shortly before trial, and formally reported the accident to police. The appellant raised a special plea alleging non-compliance with regulation 2(1)(c) which required submission of an affidavit to police within 14 days of being in a position to do so. The Court a quo (De Vos J) dismissed the special plea. The appellant appealed with leave.

• What is the proper interpretation of regulation 2(1)(c) contained in Government Gazette 17939 of 25 April 1997, particularly the phrases 'if reasonably possible' and 'after being in a position to do so'?
• Is regulation 2(1)(c) peremptory or directory?
• Is regulation 2(1)(c) ultra vires the Road Accident Fund Act 56 of 1996?
• Did the respondent comply with the requirements of regulation 2(1)(c)?
• Whether subjective knowledge of the regulation is required before the obligation to furnish an affidavit arises?

The appeal succeeded with costs. The Court set aside the order of the Court below and substituted an order: (a) granting the plaintiff leave to deliver an amendment to his replication to raise section 24(5) of the Act within 15 days; (b) providing that if such amendment is not delivered timeously, the plaintiff's claim is dismissed with costs; (c) ordering the plaintiff to pay the costs of the hearing on the special plea. The 15-day period runs from the date of the judgment (28 November 2003).

Regulation 2(1)(c) of Government Gazette 17939 of 25 April 1997, made under section 26 of the Road Accident Fund Act 56 of 1996, is peremptory and not ultra vires. The regulation requires a claimant in an unidentified vehicle case to submit an affidavit to police within 14 days of being in a position to do so, if reasonably possible. A claimant is 'in a position' to submit an affidavit when physically and mentally capable and in possession of the necessary facts about the accident; subjective knowledge of the regulation's requirements is not necessary. If it is not reasonably possible to submit the affidavit within 14 days of being in such position, the period is extended only for so long as it is not reasonably possible, but no longer. The regulation is peremptory because it prescribes a penalty for non-compliance (the Fund incurs no liability). The regulation is intra vires because it is regulatory and procedural in nature, designed to eliminate fraud and facilitate proof in cases where fraud is more likely and the Fund's ability to controvert allegations is limited, which is ancillary to the Act's objectives. An affidavit is only 'submitted' to police when it is actually furnished to them for their consideration, not merely sworn before a police officer acting as commissioner of oaths.

The Court made several obiter observations: (1) The vast majority of claimants are likely to be unaware of the regulation's requirements, which means most will lose valid claims through non-compliance, though the Court noted that such claimants are being given an enforceable right where none would otherwise exist in unidentified vehicle cases. (2) The Court suggested, without deciding, that section 24(5) of the Act (which deems a claim valid if not objected to within 60 days) might provide an answer to the special plea in this case, though this was not argued and the facts were not fully before the Court. This led to the unusual order granting leave to amend. (3) The Court distinguished the regulation from those requiring physical contact between the unidentified vehicle and the victim, which were held ultra vires in Prinsloo and Bezuidenhout because they ran contrary to Parliament's intention to give the greatest possible protection to victims. (4) The judgment referred approvingly to the purpose of such regulations as identified in Mbatha: reducing problems of fraud, inability to controvert allegations, and difficulties increasing with delay in reporting.

This case is significant in South African road accident fund law for establishing the authoritative interpretation of regulation 2(1)(c) governing 'hit and run' accident claims. It clarifies the strict requirements for submitting affidavits to police in unidentified vehicle cases and confirms these requirements are peremptory, not directory. The case upholds the validity of regulatory measures designed to prevent fraud in claims against the Road Accident Fund where the vehicle cannot be identified. It confirms that subjective knowledge of the regulation is not required for compliance, placing the onus on claimants to ensure compliance. The judgment overruled Makwetlane v Road Accident Fund [2003] JOL 10428 (W). It provides important guidance on the balance between protecting the Fund from fraudulent claims and providing compensation to genuine victims of motor vehicle accidents. The case also illustrates the Court's approach to interpreting regulations in the context of the Road Accident Fund legislative scheme, distinguishing between valid regulatory provisions and those that impermissibly restrict rights (like the physical contact requirement struck down in other cases).