IN THE HIGH COURT OF SWAZILAND
(on Special Plea)
Case No. 871/2012
In the matter between
NTOMBIFUTHI ROSE DLAMINI Plaintiff
THE MOTOR VEHICLE ACCIDENT’S FUND Defendant
Neutral citation: Ntombifuthi Rose Dlamini v The Motor Vehicle Accident’s Fund (871/2012)  SZHC 84 (30 April 2015)
Coram: MAMBA J
Delivered: 30 April 2015
 Civil law – claim for damages against Motor Vehicle Accidents Fund per section 11(1)(b) of Act 13 of 1991 (as amended). Non-paying passenger injured in a motor vehicle and claim in excess of E12,000.00 in respect of loss of income, support, cost of accommodation in a hospital or nursing home, treatment and provision of goods and services as a result of bodily injuries sustained, plus other damages . Plaintiff’s claim limited or restricted to E12,000.00 only.
 Civil law – interpretation of statute. Where wording of statute so uncertain and capable of more than one interpretation or construction – Court at liberty to resort to the background, historical and policy behind legislation in question to find true meaning thereof.
 On the 22 February 2009, the plaintiff was involved in a motor vehicle accident. The motor vehicle was insured by the defendant and was at the time of the accident driven by one Samkeliso Mncedisi Simelane.
 The plaintiff avers that the accident was caused by the sole negligence of the said driver. She also enumerates or gives the particulars of the alleged negligence. The plaintiff was a non-paying passenger in the said motor vehicle.
 The plaintiff has stated that as a result of the accident aforesaid, she sustained or suffered damages in the sum of E612,000.00 which is made up as follows:
(a) Hospital expenses E50, 000.00
(b) Medical expenses E 5, 000.00
(c) Estimated future medical expenses E50, 000.00
(d) Loss of earnings E 7, 000.00
(e) General damages for pain and suffering
Emotional shock, loss of amenities, loss
of earning capacity and disfigurement E500,000.00
 The defendant has raised what it terms a special plea; namely, that the defendant ‘is not obliged to compensate plaintiff in the amount claimed as plaintiff’s claim is subject to the statutory limit in terms of section 11(1)(b) of the Motor Vehicle Accident Act 1991 (as amended) in that the defendant is only obliged to compensate the plaintiff E12, 000.00 in respect of loss of income or support and or special damages being medical and hospital expenses and loss of earnings excluding any other loss of damage.’ A plea has also been filed on the merits and this is in the alternative to the above special plea.
 The relevant Act is Act 13 of 1991. Section 11(1)(b) of that Act states as follows:
‘11.(1)The liability of the MVA Fund to compensate a third party in connection with any one occurrence for any loss or damage under section 10 resulting in any bodily injuries to or the death of the third party who, at the time of the occurrence which caused that injury or death was being conveyed in or on the motor vehicle concerned, shall be limited-
(b) in the case of a person who was being conveyed in the motor vehicle concerned under circumstances other than those referred to in paragraph (a), to the sum of E12, 000.00 in respect of loss of income or support and the cost of accommodation in a hospital or nursing home, treatment, provision of service or goods as a result of bodily injury to or the death of one such person, plus the cost of recovering such compensation but excluding the payment of compensation in respect of any other loss or damage;
provided that the total liability under this paragraph in respect of any number of such persons shall be limited to E100,000.00.’
 The above provisions were of course repealed by the Motor Vehicle Accidents Fund (amendment) Act 20 of 2011 and replaced with the following provisions;
‘Subject to subsection (1), the total liability of the MVA Fund under section 10 in respect of a motor vehicle accident caused by the negligence of the driver or owner of a motor vehicle in the case of a person who was being conveyed in the motor vehicle concerned under circumstances other than those referred to in subsection (4), shall not exceed the sum of E50,000.00 in respect of loss of income and the cost of accommodation in a hospital or nursing home, treatment, provision of service or goods as a result of bodily injury to or the death of one such person, plus the cost of recovering such benefits but excluding the payment of benefits in respect of any other loss or damage and, the total benefits for claims by all dependants shall be limited to the sum of E500,000-00 irrespective of the number of dependants.’
The above amendments, it would seem, came into force on 23rd December, 2011; that being the date of publication of the relevant gazette containing the Act. As the cause of action herein occurred before the amendment referred to, this action is governed or regulated by the old provisions in the preceding paragraph.
 From the relevant provisions stated above, the following may be extracted:
7.1 the defendant may be held liable to a third party for any loss or damage which the latter has suffered as a result of the bodily injury to such person if
7.2 the said injury was due to the negligence or other unlawful act of a person driving a motor vehicle in Swaziland;
7.3 the liability of the defendant in such cases, where the injured party was a non-paying passenger is limited to a sum of E12,000.00 in respect of the following:
7.3.1 Loss of income,
7.3.2 Loss of support,
7.3.3 the cost of accommodation in a hospital or nursing home,
7.3.5 provision of service or goods as a result of such injury and,
7.3.6 the cost of recovery of such compensation.
There appears to be no confusion or doubt about the above issues. See the remarks by Ota J in Thabsile Sonto Nhlengethwa v Motor Vehicle Accidents Fund (1465/10) 24 September 2013 [SZHC] 210 at paras 20 & 21. This is the judgment relied upon by the defendant in its special plea herein. See also the Botswana case of Ndlovu v Motor Vehicle Insurance Fund 1999 (1) BLR 304 (HC). Both these cases relied and applied the reasoning in Santam Insurance LTD v Taylor (434/1983)  ZASCA 139  1 All SA 378 (A) (23 November 1984)
 What appears or seem to be problematic though is the meaning of the phrase ‘…but excluding the payment of compensation in respect of any other loss or damage’ that appears just before the proviso to the relevant section of the Act. In Santam (supra) Botha JA stated as follows:
‘Searching for the intention of the legislature on the question at issue merely by studying the words used in the section is to my mind an unrewarding, un-edifying and finally abortive exercise. This is so because the section as a whole is so convoluted and the syntax so clumsy that the setting in which the exclusionary phrase … appears renders it impossible to ascertain with any degree of certainty to what part of the preceding provisions the exclusionary phrase was intended to be related. One is left with the impression that when the draftsman came to write the exclusionary phrase he had lost his way in the maze of verbiage, with the result that a scrutiny of the language he used fails to reveal his intention.
It would serve no useful purpose to enter upon a detailed discussion of the linguistic and grammatical analysis to which the section was subjected in the arguments of counsel for the appellant and counsel for the respondents, for the solution to the problem is not to be found in that direction; in my opinion when all is said and done upon that score the conclusion is unavoidable that the exclusionary phrase is linguistically and grammatically susceptible of bearing both the meaning contended for on behalf of the appellant … and the meaning contended for on behalf of the respondent.
… [T]he appellant’s counsel argued that the alleged adjective did not follow directly on the noun and that this construction was accordingly too cumbersome to be acceptable. I agree that such a construction is clumsy, but it seems to me that it is no more clumsy than the construction which is required in respect of the interpretation contended for on the appellant’s behalf; on that interpretation ‘excluding’ must be understood in an adverbial sense, qualifying the verb ‘shall be limited,’ which is positioned even further away from ‘excluding’ than ‘twelve thousand rand’. The respondent’s submission in regard to the adjectival quality or ‘excluding’ seems to derive some support from the use of the corresponding expression ‘exclusive of’ in the final part of the section, following upon paragraph (bb), which I consider to be adjectivally connected with ‘twelve thousand rand’ in both paragraphs (aa) and (bb). In this regard counsel for the appellant pointed to the word ‘but’, which conjoins paragraph (bb) and the final part of the section, and contended that that showed the ‘exclusive of’ was intended to be used in a sense different from ‘excluding’, with the consequence that while the costs of recovering the compensation were recoverable, general damages were not. That argument, however, seems to me to be largely neutralized by the fact that the word ‘but’ appears to be merely an historical relic retained from the section in its original, relatively simple, form, before the introduction of various amendments, and by the fact that it refers back to both paragraph (aa) and paragraph (bb), so that I do not think that one can confidently draw inferences as to the Legislature’s intention from the presence of the word ‘but’. I should add that in the course of this argument before this Court counsel for the respondent jettisoned his submission regarding the adjectival use of ‘excluding’ in relation to ‘twelve thousand rand’ in favour of a contention that ‘excluding’ referred to the whole of the preceding limitation in respect of special damages. This merely underscores the difficulties of interpretation which the Legislature has caused by this inept piece of draftsmanship.’
The learned judge of appeal then referred to the Afrikaans version of the same Act and continued as follows:
‘In my opinion the man in the street would be at least as perplexed by the language used by the Legislature as is the man on the Bench who is writing this judgment …I agree with the argument of counsel for the appellant that on the meaning contended for by him there is no superfluity: had paragraph (bb) merely imposed the limitation on the amount recoverable in respect of the items of special damage mentioned, without more, it might well have been thought that a claim for general damages was maintainable by virtue of section 21 (1) of the Act, to which I referred earlier, and which provides in wide terms for the liability of an authorized insurer to pay compensation for ‘any loss or damage’ suffered by a third party. Accordingly, if it wished to disallow such a claim, it was necessary for the legislature to add some kind of exclusionary provision to that effect.’
 The learned judge of appeal concluded that because of the uncertainty of the language used in the exclusionary phrase, the true or real meaning of the section lay in the historical background of the enactment of the Act itself and compulsory insurance specifically, and the policy considerations behind it. After narrating the said historical background the learned judge concluded:
‘It is far more likely that the legislature intended to place a greater, rather than a lesser, limitation on the liability of an authorized insurer to pay compensation in respect of ordinary passengers, and that it intended to do so by limiting liability to R12,000 in respect of the items of special damage mentioned while excluding any liability at all in respect of general damages. …the liability of an authorized insurer to compensate a third party for loss or damage resulting from bodily injury to or the death of a person who was being conveyed in an insured motor vehicle and who falls within the ambit of section 22(1)(d) of Act 56 of 1972 as amended is limited to the sum of E12,000 in respect of the items of loss or damage specifically mentioned in section 22(1)(bb) of the Act as amended…in such a manner that liability for the payment of compensation in respect of any other loss or damage is excluded.’
I respectfully agree with these remarks. My judgment on this point is reinforced by the fact that, notwithstanding these judgments on the interpretation of the exclusionary phrase, the legislature still found it appropriate to retain this phrase in section 11(5) of the 2011 Act. The Legislature is presumed, in this case, to have been aware of these judgments when it enacted the 2011 Act. As stated by the court in Ndlovu (supra) the Botswana section 11(1)(b) and the South African section 22(1)(bb) are in identical terms. They are similar to ours as well.
 For the foregoing reasons, the special plea or exception herein is upheld; to the extent that the liability of the defendant, if any, is limited to the sum of E12,000.00.
 As stated above, the liability of the defendant must be based or founded on negligence. The MVA Fund is a fault-based scheme. This Court has not been asked to determine or embark on that enquiry. That being the case, there can be no order or finding on that issue. Again, the Constitutionality or otherwise of these limitations or restrictions in the Act was not in issue in these proceedings.
 Consequently, I make the following order:
the special plea is upheld as stated in paragraph 10 above; with costs.
For the Plaintiff : Mr. S. Dlamini
For the Defendant : Mr. S. Masuku