Times Of Swaziland: VICTORY FOR HIT-AND-RUN ACCIDENT CLAIMANTS

VICTORY FOR HIT-AND-RUN ACCIDENT CLAIMANTS
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BY MBONGISENI NDZIMANDZE  on 23/02/2021 01:03:00


MBABANE – It is victory for hit-and-run accident victims!
A full bench of the High Court has declared unconstitutional Section 11 of the
Motor Vehicle Act which required, among other things, hit-and-run victims to
identify the motor vehicle (that hit them) to be eligible for compensation for
general damages.
The Section required the victim of an accident to have identified the motor
vehicle or owner of the vehicle which knocked him or her down in order to be
eligible for compensation for general damages from the Sincephetelo Motor
Vehicle Accidents Fund (SMVAF).
General damages is compensation awarded for pain, suffering and loss of amenity.
 This is an award designed to compensate a claimant for the actual injuries
suffered and the effects on his or her quality of life.
The core business of SMVAF is to compensate victims of motor vehicle accidents,
or their dependants, in the circumstances and upon the limits specified in the
Act.
Section 11 bis (1), stipulated which the court has since declared
unconstitutional, provided that:  “The liability of Sincephetelo Motor Vehcile
Accidents  Fund (SMVAF) under the Act in respect of claims for bodily injury or
death arising from the driving of a motor vehicle of which neither the owner’s
nor the driver’s identity can be established, hereinafter, referred to as the
unidentified motor vehicle shall be subject to the following conditions: “No
liability shall be incurred by the SMVAF unless, the bodily injury or death
arose from negligent or unlawful driving of the  unidentified motor vehicle and
proof thereof to the satisfaction of the fund.”
The full bench of the High Court which comprised of Justices Titus Mlanegni,
Nkosinathi Maseko and Doris Tshabalala declared the section unconstitutional for
being irrational and discriminatory. The court then accordingly struck it down.
It is in the public interest that this particular dispute should be resolved
effectively. The operations of the fund affect all road users, motorists and
pedestrians alike, who all have an interest in its operations.  The judgment,
whichever way it goes, is for the whole nation because the fund is a national
institution which should never be averse to guidance on how to be of better
service to the people of the country,” said Judge Mlangeni.
Previously, in such circumstances (where a person had not identified the motor
vehicle) the fund was only liable for medical treatment, hospitalisation,
consultation and rehabilitation up to a maximum of E150 000 in respect of any
one claimant or E150 000 in respect of any number of claimants. There were no
general damages emanating from a claim where the person was unable to identify
the motor vehicle or owner.
Respondents in the matter were minister of Finance, SMVAF and the attorney
general.
The aforementioned section further required that evidence should be produced to
the satisfaction of the fund proving that the claimant took all reasonable steps
to indentify the owner or driver of the unidentified motor vehicle. The
provision of the Act, which has since been struck down, further required
evidence to be produced to the satisfaction of the fund that the unidentified
motor vehicle (including anything on, in or attached to it) came into physical
contact with the injured or deceased person, vehicle, conveyance or any other
object or objects which directly or indirectly caused or contributed to the
injury.
The judgment by the court comes after Muzikababa Benedict Sibiya took the
respondents to court after the fund refused to compensate him on the basis of
Section 11.
Sibiya contended that the provision of the Act was irrational as it required
someone who was in pain and suffering to be able to identify the motor involved
in the accident.  It was further his contention that the provision was unfair in
his case as it was impossible for him to indentify the motor vehicle.
The factual background of the matter is that on the night of October 5, 2013,
the applicant (Sibiya), who was a pedestrian at the time, was run over by a
motor vehicle while proceeding to his residence in the company of his colleague.
He was rendered unconscious. The motor vehicle did not stop and despite an
attempt by one Sindi Dlamini to puruse the vehicle, it was not identified and
remains unidentified.
Pursuant to the accident, the applicant was admitted to the Mbabane Government
Hospital Intensive Care Unit (ICU) where he underwent surgery. Upon being
discharged from the hospital, he was admitted to Hope House for rehabilitation,
where he remained for about one month.  Sibiya’s injuries were mainly on the
head and the court found that it was apparent from the reports that the injuries
were of a serious nature.  A report by a neurosurgeon at Mbabane Government
Hospital, dated November 5, 2013, states that the applicant sustained
intra-cranial hemorrhage, a craniotomy was done and now he was unable to take
care of himself.
At the time of the injury, the applicant was a third-year student of Science at
Luyengo Campus of the University of Eswatini, pursuing BSC in Animal Science.
Compensation
In due course, Sibiya lodged a claim against the fund for compensation.  In his
application to the court, he averred that the fund refused to compensate him.
According to Sibiya, the fund specifically, refused to avail him financial
assistance as he struggled to progress with his tertiary studies and he
eventually dropped out because government did not fund students who were
repeating courses.
The refusal of financial assistance by the fund was communicated to Sibiya by a
letter in February 2016 in the following terms: “ Be advised that your claim
falls within the ambit of Section 11 bis of the MVA Act, 2011, as amended, hence
the fund will be liable for only medical treatment, hospitalisation.
Judge Mlangeni said there was a glaring problem with this limitation.  He said
it was irrational in that the limit in respect of one claimant was the same in
respect of many claimants, whether two or 10 or whatever, they all shared E150
000.
“Such situation is irrational and therefore untenable. Compare, for instance,
the position in Section11 (7) (b) of the amended Act, which restricts claims in
respect of a driver or a driver’s dependant to E60 000 and E300 000 in case of
many claimants,” noted the judge.
Unfairness
He said this demonstrated that the drafter of the law was alive to the fact that
there was an inherent unfairness in letting one man have the whole cake to
himself and many men share the same size of cake.
“This declaration will apply to and govern all claims instituted under this
Act which at the date of this order have neither prescribed nor been finally
determined in one way or another,” reads part of the judgment.
The court said because of the starkly incomparable resources between the fund
and the applicant in the matter, it ordered the fund to pay the costs of the
application at the ordinary scale.
The applicant in the matter was represented by Human Rights Lawyer Sibusiso
Magnificent Nhlabatsi,  while appearing for the fund was Sabelo Masuku.