Road Accident Fund v Mtati (332/2004) [2005] ZASCA 65; [2005] 3 All SA 340 (SCA); 2005 (6) SA 215 (SCA) (1 June 2005)

Road Accident Fund v Mtati (332/2004) [2005] ZASCA 65; [2005] 3 All SA 340 (SCA); 2005 (6) SA 215 (SCA) (1 June 2005)

The Supreme Court of Appeal held that a child born alive with disabilities resulting from injuries sustained by the mother in a motor vehicle accident while pregnant has a claim against the Road Accident Fund under Article 40 of the Agreement to the Multilateral Motor Vehicle Accidents Fund Act. The court rejected the argument that a foetus is not a 'person' for the purposes of the Act, finding that the right of action only becomes complete upon birth. The court preferred the ordinary principles of the law of delict over the nasciturus fiction, holding that the damage is suffered by the child at birth, when legal personality is acquired. The court further found that the driver owed a...

Citation
[2005] ZASCA 65
Parties
Appellant: Road Accident Fund; Respondent: Mxolisi Richard Mtati obo Zukhanye Mtati
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2005
Case Number
332/04
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Special Plea
Outcome
Appeal dismissed with costs.
Judges
MPATI, ZULMAN, FARLAM, VAN HEERDEN, JAFTA
Legal Topics
Nasciturus Fiction, Pre Natal Injury, Motor Vehicle Accident, Compensation for Injury, Duty of Care
Delict Nasciturus Fiction Pre Natal Injury Motor Vehicle Accident Compensation for Injury Duty of Care

Case Brief

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Parties

Road Accident Fund

Appellant

Mxolisi Richard Mtati obo Zukhanye Mtati

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Special Plea

Legal Issues

  1. 1 Whether a child born with disabilities resulting from injuries sustained by the mother in a motor vehicle accident while pregnant has a claim against the Road Accident Fund under Article 40 of the Agreement to the Multilateral Motor Vehicle Accidents Fund Act.
  2. 2 Whether a foetus in utero is regarded as a 'person' in law for the purposes of compensation under the Act.
  3. 3 Whether the insured driver owed a legal duty to the child who was unborn at the time of the accident.

Ratio Decidendi

The Supreme Court of Appeal held that a child born alive with disabilities resulting from injuries sustained by the mother in a motor vehicle accident while pregnant has a claim against the Road Accident Fund under Article 40 of the Agreement to the Multilateral Motor Vehicle Accidents Fund Act. The court rejected the argument that a foetus is not a 'person' for the purposes of the Act, finding that the right of action only becomes complete upon birth. The court preferred the ordinary principles of the law of delict over the nasciturus fiction, holding that the damage is suffered by the child at birth, when legal personality is acquired. The court further found that the driver owed a...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs, including those occasioned by the employment of two counsel.