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RAF v Mtati - REPUBLIC OF SOUTH AFRICA THE SUPREME COURT OF...

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REPUBLIC OF SOUTH AFRICA THE SUPREME COURT OF APPEAL OF SOUTH AFRICA Case number: 332/04 Reportable In the matter between: ROAD ACCIDENT FUND APPELLANT and MXOLISI RICHARD MTATI obo ZUKHANYE MTATI RESPONDENT CORAM : MPATI DP, ZULMAN, FARLAM, VAN HEERDEN et JAFTA JJA HEARD : 17 MAY 2005 DELIVERED : 1 JUNE 2005 SUMMARY: Delict – pregnant woman injured in motor collision – child subsequently born with brain damage resulting from collision – whether child has action against RAF. ________________________________________________________ JUDGMENT ________________________________________________________ FARLAM JA
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2 INTRODUCTION [1] This is an appeal against the dismissal by Froneman J, sitting in the East London Circuit Local Division of the High Court, of a special plea raised by the appellant against a claim brought by the respondent, in his capacity as father and natural guardian of his minor daughter, Zukhanye Mtati, in terms of Article 40 of the Agreement set out in the schedule to the Multilateral Motor Vehicle Accidents Fund Act, 93 of 1989. (References in what follows to ‘the Act’ are references to Act 93 of 1989.) PLEADINGS [2] In his particulars of claim the respondent claimed an amount of R1 365 580 from the appellant, alleging that a collision took place on 20 December 1989 in East London between a motor vehicle, which was being negligently driven at the time by one Dlalo, and the respondent’s wife, who was a pedestrian. As a result of the collision it was alleged, the respondent’s wife, who was then pregnant with Zukhanye, sustained serious bodily injuries. Zukhanye was born some five and a half months after the collision. It is alleged in the particulars of claim that she has brain damage and is mentally retarded and that this brain damage and mental retardation arose out of the injuries sustained by her mother as a result of the collision.
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3 [3] The appellant’s special plea rests on two bases. [4] The first is what is contended to be the proper construction of Article 40 of the Agreement, which reads as follows: ‘The MMF [ie, the Multilateral Motor Vehicle Accidents Fund, the predecessor of the appellant] or its appointed agent, as the case may be, shall subject to the provisions of this Agreement, be obliged to compensate any person whomsoever (in this Agreement called the third party) for any loss or damage which the third party has suffered as a result of – (a) any bodily injury to himself; (b) the death of or any bodily injury to any person, in either case caused by or arising out of the driving of a motor vehicle by any person whomsoever at any place within the area of jurisdiction of the Members of the MMF, if the injury or death is due to the negligence or other unlawful act of the person who drove the motor vehicle (in this Agreement called the driver) or of the owner of the motor vehicle or his servant in the execution of his duty.’ The appellant contends in its special plea that, as the respondent’s minor child was at the time of the collision a foetus in utero, she was not, on what is called a ‘proper construction’ of Article 40, a ‘person’ entitled to compensation.
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