The recent decision in Oscar Mashengane v Road Accident Fund (15034/2020) [2025] ZAGPPHC 1207; 2026 (3) SA 412 (GP) (18 November 2025) marks one of the significant developments in Road Accident Fund (the Fund) jurisprudence. This judgment pens not only the interpretation of the Road Accident Fund Act 56 of 1996, as amended (RAFA), but also delict, insurance principles, and the Constitutional provisions. But what happens when there is an ‘intention’ to cause harm? Does the Fund refute liability?
Introduction:
The plaintiff, Oscar Mashengane instituted a claim against the RAF for injuries sustained 01st of January 2019, with his cause of action founded on the allegation of ‘negligence by the insured driver’. The plaintiff alleged that he was a pedestrian when he was struck by a motor vehicle due to the negligence of the insured driver. In the evidence before Court, the plaintiff testified that he was at a tavern and bought liquor. When he wanted to leave, he asked the tavern owner to lend him a bucket to put his liquor in when one Mr Ramunenyiwa prevented him to leave with the bucket. They argued and ultimately a fight broke down between the plaintiff and Ramunenyiwa before being separated. He further testified that whilst on his way home, about 30 meters away from the tavern, facing on-coming traffic, he heard people shouting ‘hey’ and looked back to see a speeding motor vehicle coming at him and knocked his left foot before falling to the ground and rolling. The court further looked at the sworn statements contained in the police docket made by the witnesses which summed that the plaintiff and Ramunenyiwa were in a fight before being separated, and that Ramunenyiwa went to his motor vehicle and drove directly at the plaintiff in high speed and further attempted to run over the plaintiff again before being stopped by other people who were present at the scene. It was by this evidence and the sworn statements contained in the police docket that the evidence suggested that the collision was an ‘intent’ as opposed to being ‘accidental’ as the insured driver drove ‘intentionally’ towards the plaintiff after an altercation between the 2 of them.
The Fund, as established by section 2 of the RAFA, is obliged under the provisions of section 3 to compensate victims of motor-vehicle accidents. On the other hand, section 17(1) of the RAFA provides that…
“the fund shall be obliged to compensate any person for loss or damage which the third party has suffered as a result of bodily injuries caused by or arising from the driving of a motor vehicle, if the injury is due to the negligence or other wrongful act of the driver or owner.”
Interpretation:
As highlighted above, section 3 of the RAFA mandates the Fund to compensate the road ‘accident’ victims. Of importance is the provisions of section 17(1) as highlighted and the interpretation thereof. In its interpretation of section 17(1), the Court emphasised on the literal meaning of negligence driving. When challenged with the literal meaning of “other wrongful act”, the Court provided that the meaning and context do not in itself highlight ‘intent’ as it would not align with the statutory scheme of the fund. Emphasis was expressed that the context is the ‘accident caused by negligence driving as opposed to extending the arm to intentional motor vehicle assaults.
It is by this interpretation that one may agree with the Court’s direction. One would say that the literal meaning of “other wrongful act” should not be interpreted separately to the full context of section 17(1). It could be argued that in reading and interpreting the provisions of section 17(1), the “other wrongful act” could be referring to the not actual act of driving of a motor vehicle, which would align with the wording and insertion of “or owner of the motor vehicle”.
Defining accident:
The Oxford English dictionary defines the term accident as “an unfortunate incident that occurs unexpectedly and unintentionally, typically resulting in damage or injury”. This definition aligns with the traditional insurance-law principles which our Courts have adopted and consistently held in various judgments that the deliberate conduct automatically falls out of the notion of an insured accident. It is through this consistency that the Court correctly applied itself to the interpretation of the RAFA in terms of the provisions of section 39(2) of the Constitution of the Republic of South Africa, 1996.
Of more influence is the Supreme Court of Appeal judgment in Goodenough NO v Road Accident Fund wherein the Supreme Court of Appeal held that the Fund’s liability must be derived from the provisions of the RAFA itself and further that the Courts cannot extend the statutory liability of the Fund beyond its prescribed limits, reaffirming the notion that the Fund is a creature of statue and its obligations must be determined through careful interpretation of the Act.
Further influence can be derived from the judgment in Kruger v Coetzee wherein the Appellant Division established the reasonable person test. In the present matter, Moshoana J found that there is a drawn distinction between negligence and intention as the evidence suggested deliberate (dolus) conduct as opposed to negligence (culpa).
Conclusion:
The judgment provides a landmark that offers clarification between negligent driving and intentional motor vehicle assaults. The Court correctly applied its interpretation powers as afforded for by the Constitution. Although there is a fundamental and constitutional concern of balancing a ‘generous’ interpretation of remedial legislation against the principles of legality and judicial constraints, the judgment raises important issues that are worth having the Constitutional Court decide on.
References:
1. Road Accident Fund Act No. 56 of 1996 (as amended)
2. Constitution of the Republic of South Africa, 1996
3. Oscar Mashengane v Road Accident Fund (15034/2020) [2025] ZAGPPHC 1207; 2026 (3) SA 412 (GP) (18 November 2025)
4. Goodenough NO v Road Accident Fund 2003 (6) SA 439 (SCA)
5. Kruger v Coetzee 1996 (2) SA 428 (A)
6. Oxford English Dictionary MLA 9th Edition (online) [Oxford English Dictionary]
Written by: Mr. Tshegofatso Mphela (Candidate Attorney) and reviewed by Mr. Thendo Negota (Attorney), Mphela & Associates, Polokwane