Introduction
The Gauteng High Court in deciding the case of Mashengani v Road Accident Fund (2025) ZAGPPHC 1207 represents a rigid, retrogressive departure from established delictual principles and the statutory purpose of the Road Accident Fund Act 56 of 1996. By ruling that RAF escapes liability whenever an insured driver intentionally uses a vehicle as a weapon, the court erroneously conflated the perpetrator’s intent with the victim’s lack of fortuity, stripping an innocent road user of essential statutory protection.
Factual background
The facts of the case emanate from an altercation which took place at or near Fish Point Tavern, situated in the Vleifontein area in the town of Louis Trichardt, Limpopo Province, on New Year’s Day in 2019. Following a physical fight, the assailant entered his motor vehicle and deliberately drove into the plaintiff, Oscar Mashengani, causing him severe bodily injuries. Mashengani sought third-party compensation from the RAF, framing the incident within the purview of the Road Accident Fund Act 56 of 1996 (hereinafter referred to as “the Act”).
Legal issue and outcome
The core legal issue before Judge Graham Moshoana was whether a deliberate, criminal act of violence falls within the statutory risk covered by the Road Accident Fund. Under Section 17(1) of the Act, the RAF is liable to compensate victims for loss or damage caused by the negligent or otherwise wrongful act of a driver. The court dismissed the claim, absolving the RAF from liability based on two fundamental legal principles:
- First, the definition of the word “accident” inherently denotes an event that is tortious, unexpected, or unintended.
- Second, regarding the scope of statutory liability, the Judge outlined that the legislative intent of the Act is to safeguard road users against vehicular negligence and fortuitous mishaps.
Consequently, the court concluded that the RAF must be absolved from the instance.
What does the Act say?
Section 17(1) of the Road Accident Fund Act 56 of 1996 mandates that the Fund is obliged to compensate a third party for bodily injury or death arising from the negligence or other wrongful act of the driver or owner of a motor vehicle.
In casu the court failed to fully ventilate the import of the phrase “or other wrongful act.” The intentional running over of a pedestrian constitutes a wrongful act, which falls within the ambit of the Act, thereby entitling the injured party to compensation from the Fund.
The error of redundancy
The High Court’s reliance on the eiusdem generis rule effectively turned the phrase “or other wrongful act” into a mirror image of negligence. However, the Legislature explicitly chose the disjunctive term “or” to create two distinct structures of liability, because “any other wrongful act” conceptually covers intention (dolus), the Court broke a cardinal rule of statutory interpretation by shrinking the second structure to mean only things similar to negligence. Words in a statute must not be interpreted to be redundant or superfluous. If the Legislature only meant negligence, it would not have explicitly added alternative wording.
The misapplication of insurance public policy
The High Court heavily relied on the insurance law principle that a person cannot insure themselves against their own intentional, criminal wrongdoing. This reliance is misplaced, as the Road Accident Fund (RAF) is not a commercial insurer protecting a wrongdoer. Rather, it is a statutory fund established to protect the victim.
Compensating the plaintiff does not exonerate the driver, nor does it indemnify them against criminal prosecution or personal financial exposure via RAF recovery processes. Therefore, public policy should favour compensating an innocent pedestrian rather than leaving them completely destitute due to a driver’s criminal actions on a public road.
Conclusion
In summary, the learned Judge erred in fact and in law by summarily concluding that the insured driver acted with direct intent, relying primarily on the historical fact that an administrative criminal docket for attempted murder had been opened.
The Court failed to properly investigate or consider the actual state of mind of the insured driver at the material time, ignoring the possibility that the driver’s conduct while highly reckless constituted a gross deviation from the standard of a reasonable person, thereby falling squarely within the ambit of gross negligence.
The learned Judge failed to appreciate that a criminal charge or a plea of “not guilty” in a criminal case does not bind a civil court. The insured driver may well have lacked the subjective intent to cause bodily harm, intending merely to intimidate the Plaintiff, whereafter an intervening factor such as mechanical failure or a sudden loss of vehicular control resulted in the collision.
By treating the criminal allegation of intent as a definitive bar to civil recovery under Section 17(1) of the Act, the Court misdirected itself on the evidence and closed the door on a competent finding of negligence.
Reference:
Road Accident Fund Act 56 of 1996
Klopper, H.B., 2006. Road Accident Fund Practitioner’s Guide. Durban: LexisNexis. E-11
Written by Mr Tshego Leope (Candidate Attorney) and reviewed by Mr Tshepo Matlala, Director and Head of Litigation, Mphela & Associates, Groblersdal