Road Accident Fund v Mkhize

The respondent (plaintiff) was employed by the owner of a tow truck and was seated in the cab of a disabled articulated tanker that was being towed. During the towing operation, the tow truck (driven by W J Lehmkuhl) collided with a road grader. The tanker capsized solely due to the negligence of the tow truck driver, and the respondent was injured. The respondent was being conveyed in the course of the lawful business of the owner of the tanker. The issue arose as to whether his claim against the Road Accident Fund was limited to R25,000 under section 18(1) of the Road Accident Fund Act 56 of 1996.

• Whether a person seated in a vehicle being towed is a 'passenger' as contemplated by section 18(1) of the Road Accident Fund Act 56 of 1996
• Whether the driver of a tow truck is also deemed to be the driver of the vehicle being towed for purposes of the Act
• Whether the limitation of liability in section 18(1) applies where the injured person was in the towed vehicle rather than the towing vehicle
• The proper interpretation of 'the motor vehicle concerned' in section 18(1) where two vehicles are involved

The appeal succeeded with costs. The order of the court a quo was replaced with an order declaring that the plaintiff's claim is limited to R25,000 as provided for in section 18(1) of the Road Accident Fund Act 56 of 1996, and that the plaintiff is ordered to pay the costs of the proceedings.

The binding legal principles established are: (1) A person who is in control of a vehicle being propelled by mechanical power (such as a towed vehicle) is deemed to be the driver of that vehicle in terms of section 20(1) of the Road Accident Fund Act 56 of 1996; (2) A driver of a towing vehicle is simultaneously the driver of both the towing vehicle (actually driven) and the towed vehicle (deemed to be driven); (3) A passenger seated in a towed vehicle is a passenger 'in or on the motor vehicle concerned' for purposes of section 18(1) of the Act; (4) Where such a passenger is being conveyed for reward, in the course of lawful business, or in the course of employment, the limitation of R25,000 in section 18(1)(a) applies to claims against the Road Accident Fund; (5) The expression 'conveyed in or on the motor vehicle concerned' refers to either the vehicle actually driven or the one deemed to be driven, or potentially both.

The court noted approvingly remarks by Jansen JA in Santam Versekeringsmaatskappy Bpk v Kemp 1971 (3) SA 305 (A) regarding the concept of 'driving' a trailer or towed vehicle, observing that while it may depart from ordinary usage, there is no objection in principle to speaking of 'driving' a trailer once it is accepted as an independent motor vehicle. The court also observed that there is nothing unusual about a driver being the driver of two vehicles at the same time, giving examples such as a driver of a horse and trailer or a car and caravan. The court mentioned that if the respondent is found to have been an employee as contemplated in section 18(2)(a), his claim might be subject to further downward adjustment, though this was not finally decided.

This case establishes important principles regarding the interpretation of passenger status under the Road Accident Fund Act. It clarifies that a driver of a towing vehicle is deemed to be simultaneously the driver of the towed vehicle for purposes of the Act. The judgment provides guidance on when the statutory limitation on claims applies, particularly in complex scenarios involving multiple vehicles under the control of a single driver. It demonstrates the application of the deeming provision in section 20(1) and its interaction with the passenger limitation provisions in section 18(1). The case is significant for claims involving towed or disabled vehicles and the extent of liability limitations under the Road Accident Fund Act.