Makhathini v Road Accident Fund

A three-year-old child, Mphathi Makhathini, was struck and injured by a motor vehicle while near a communal tap alongside Falezwe Road in Ntuzuma, KwaZulu-Natal, on 26 October 1993. His mother, Sibongile Wendy Makhathini, sued the Road Accident Fund in her representative capacity. The insured driver, Mr Justice Thembelihle Zondi, later died from unrelated causes and could not testify. The plaintiff sought to rely on a Road Traffic Collision Report containing a statement attributed to Zondi that he was driving at 40 km/h at the time of the collision. The trial court refused to admit the report under s 3(1)(c) of the Evidence Amendment Act 45 of 1988 and granted absolution from the instance for lack of proof of negligence.

The appeal was dismissed. The order of absolution from the instance in favour of the Road Accident Fund was upheld.

The case is a leading authority on the application of s 3(1)(c) of the Evidence Amendment Act 45 of 1988, particularly in civil matters involving Road Accident Fund claims. It clarifies that extra-curial statements by insured drivers, even if amounting to double hearsay, are not excluded on principle and must be assessed under the statutory discretion guided by the interests of justice. The judgment confirms and develops the approach adopted in Mdani and marks a decisive shift away from rigid common-law concepts such as privity of interest in determining admissibility.