- The court held that the Road Accident Fund does not cover injuries from intentional vehicle attacks, only negligent driving.
- Evidence showed the driver deliberately aimed at the plaintiff after a tavern fight, meaning there was no “accident” in law.
- With negligence not proven and intention not pleaded, the plaintiff’s claim against the RAF failed completely.
The High Court in Pretoria has set a clear limit on the Road Accident Fund’s liability by ruling that it cannot be held responsible when someone uses a vehicle intentionally as a weapon.
Judge GN Moshoana dismissed a claim made by Oscar Mashengani after finding that he was not a victim of an accident, but rather the target of a wilful attack following a tavern fight in Louis Trichardt.
The incident occurred in the early hours of New Year’s Day 2019 after Mashengani and friends were asked to leave Fish Point Tavern in Vleifontein. A dispute over a bucket allegedly belonging to the tavern escalated into a physical fight between Mashengani and another patron Tendani Edwin Ramunenyiwa.
The fight was broken up, but what happened next changed the situation from a disturbance to something much more serious. According to witness statements, Ramunenyiwa got into his car, drove toward the group, and deliberately struck Mashengani before trying to turn around and hit him again.
Witness Kgaugelo Machete later told police, “The accused went to his car and got inside and followed us behind, and we tried to get out of the road to the grass, and he came straight to the grass and hit Oscar with the car.” Another witness, Sidzani Caswell Mukwevho, confirmed that after hitting Mashengani, the driver “made a U-turn and drove back to the complainant” but fled when a crowd gathered.
An attempted murder case was opened at Bandelierkop SAPS. Mashengani himself told police two days later, “I did not give anyone permission to hit me with the vehicle. I would like a further police investigation into this matter.”
The case against the RAF unravels
Despite this background, Mashengani later filed a claim with the Road Accident Fund, describing the incident as a hit-and-run that occurred while he was walking along a gravel road. In court his story changed again. He testified that he was struck from behind without knowing why and that the driver simply failed to look out properly.
Judge Moshoana found these explanations contradicted the sworn police statements and the criminal charge of attempted murder. “On a full review of the material presented to this court”, he held “, it cannot be doubted that the alleged insured driver used the motor vehicle as a weapon in a fight. There was no accident.”
That distinction proved fatal to Mashengani’s case. Under section 17 of the Road Accident Fund Act, the RAF only compensates victims for injuries caused by negligent driving. A deliberate attack is not considered an accident but an assault.
Judge Moshoana was clear: “Where the wrongful act is intentional, the RAF does not attract liability.” He added that accidents, by their nature, involve unplanned mishaps, not calculated harm.
Negligence must be pleaded and proven
The court also criticised how the case was presented. Mashengani’s claim against the RAF was based entirely on negligence, yet the evidence indicated intention. Judge Moshoana emphasised a basic rule of civil litigation, that a party cannot present one case and then try to prove another.
Even if the law could stretch to include intentional wrongdoing as a wrongful act under the statute, which the court was doubtful about, Mashengani did not plead intention at all. That alone would have been enough to deny the claim.
As the judge stated, “Negligence must not only be alleged, but it must also be proven. It is not enough for a plaintiff to interpret clear intentional acts of a driver of a motor vehicle to mean negligence.”
In addition to the inconsistencies in Mashengani’s accounts, the court noted that his two friends, who witnessed the incident, were not called to testify despite having given detailed statements to the police. Their absence led the judge to infer that their evidence would not have supported Mashengani’s version in court.
No compensation, no costs
Ultimately, the court found that Mashengani failed to prove negligence and pursued the wrong defendant. Judge Moshoana suggested that his remedy lay not with the public compensation fund but in a personal civil claim against the driver who allegedly tried to kill him.
In the final order, the court ruled that the Road Accident Fund was absolved from the instance and made no order regarding costs, leaving Mashengani without compensation from the Fund.
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