Road Accident Fund v Mxolisi Richard Mtati obo Zukhanye Mtati

On 20 December 1989, a collision occurred in East London between a motor vehicle negligently driven by one Dlalo and a pregnant pedestrian (the respondent's wife). The mother sustained serious bodily injuries. Approximately five and a half months after the collision, Zukhanye Mtati was born with brain damage and mental retardation allegedly resulting from the injuries sustained by her mother in the collision. The respondent, as father and natural guardian of the minor child, claimed R1,365,580 from the Road Accident Fund (RAF) under Article 40 of the Agreement set out in the schedule to the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989.

• Whether a child born alive after sustaining pre-natal injuries has a cause of action against the Road Accident Fund under Article 40 of the MMF Agreement
• Whether the word 'person' in Article 40 includes a foetus in utero at the time of the collision
• Whether a duty of care can be owed to a foetus
• Whether the nasciturus rule should be applied to extend rights to pre-natally injured children, or whether ordinary principles of delict suffice
• When does a cause of action for pre-natal injuries arise - at the time of the wrongful act or at the time of birth

The appeal was dismissed with costs, including those occasioned by the employment of two counsel. The special plea raised by the Road Accident Fund was dismissed, meaning the respondent's claim on behalf of his daughter could proceed.

A child born alive after sustaining injuries while in utero has a cause of action under both the common law of delict and under Article 40 of the MMF Agreement (and by extension under the Road Accident Fund Act). The cause of action arises when the child is born alive, not when the wrongful act causing the pre-natal injuries was committed. In law and logic, no damage can be caused to a plaintiff before the plaintiff existed; the damage is suffered at birth when the child achieves legal personality and inherits the damaged body. The events prior to birth are links in the chain of causation between the defendant's wrongful conduct and the damage. A driver of a motor vehicle owes a legal duty to unborn children as pregnant women are foreseeable road users and injury to children en ventre sa mère is within the area of foreseeable risk. The word 'person' in Article 40 of the MMF Agreement, when properly interpreted in context and in light of the social purpose of the legislation (which provides the widest possible protection against loss and damage from negligent driving), includes a child who was injured pre-natally but born alive.

The court expressed preference for the ordinary principles of delict approach over the nasciturus fiction approach, though it was not strictly necessary to choose between them for the outcome of the case. Farlam JA criticized the application of the nasciturus rule in Stevenson NO v Transvaal Provincial Administration 1934 TPD 80, which denied a claim by a posthumous child born after the limitation period, stating that on ordinary delictual principles no cause of action arose until the child was born and the application should have been granted. The court noted that problems arising in American and English law (such as claims by estates of stillborn children or claims by children against their mothers) are unlikely to arise in South African law due to: (1) the requirement of live birth for the cause of action to be complete; (2) the rule that claims for pain and suffering and actio injuriarum lapse on death unless litis contestatio has been reached; (3) limited recovery for loss of expectation of life; and (4) the requirement of an enforceable legal duty for any claim against a mother. The court indicated that whether a child could sue its mother for pre-natal injuries would depend on whether an enforceable legal duty is recognized, a matter on which no opinion was expressed. The court engaged extensively with comparative jurisprudence from Canada, Australia, Germany, and England, as well as academic commentary.

This is a landmark case in South African delict law establishing that children have a right of action for pre-natal injuries under both the common law and the statutory regime governing motor vehicle accident compensation. The judgment importantly clarifies that the cause of action arises at birth (not at the time of the wrongful act), rejecting reliance on the nasciturus fiction in favor of ordinary delictual principles. This approach avoids the conceptual difficulties of treating a foetus as a legal person while still providing a remedy for grave injustice. The judgment demonstrates the court's willingness to develop the common law to meet the demands of justice and social policy, particularly in the context of social legislation aimed at protecting road accident victims. It also provides important guidance on statutory interpretation in the context of compensatory schemes.