Road Accident Fund v Mtati obo Zukhanye Mtati

A pregnant woman was injured as a pedestrian in a motor vehicle collision on 20 December 1989 in East London due to the negligent driving of a motor vehicle. At the time of the collision she was pregnant with her daughter, Zukhanye Mtati. Zukhanye was born approximately five and a half months later and suffered brain damage and mental retardation, alleged to have been caused by the injuries sustained by her mother in the collision. The child’s father, acting as her natural guardian, instituted a claim against the Road Accident Fund (RAF) under Article 40 of the Multilateral Motor Vehicle Accidents Fund Agreement. The RAF raised a special plea contending that a foetus is not a ‘person’ for purposes of Article 40 and that no duty of care was owed to the unborn child.

The appeal was dismissed. The special plea raised by the Road Accident Fund was rejected, allowing the respondent’s claim on behalf of the minor child to proceed.

This decision authoritatively confirmed in South African law that a child born alive has a claim for damages arising from pre-natal injuries caused by negligent driving, including claims against the Road Accident Fund. It resolved long-standing uncertainty left open after Pinchin v Santam and aligned South African delictual law with principles of fairness, causation, and social-protection legislation. The case is a leading authority on pre-natal injury claims and the interpretation of ‘person’ in compensatory motor vehicle accident legislation.