THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 276/2017
In the matter between:

THE ROAD ACCIDENT FUND

APPELLANT

and

MOGAMAT RIDAA ABRAHAMS

RESPONDENT

Neutral citation:
Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49
(29 March 2018)
Coram:
Navsa, Lewis and Willis JJA and Makgoka and Hughes AJJA
Heard:

21 February 2018
Delivered:

29 March 2018
Summary:
Road Accident Fund Act 56 of 1996 : section 17: whether a
driver in a single motor vehicle accident is entitled to claim under the provisions of
section 17 of the Road Accident Fund Act.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (Salie-
Hlophe J) judgment reported sub nom Abrahams v Road Accident Fund 2016 (6) SA
545 (WCC).

The appeal is dismissed with costs, including costs attendant upon the employment
of two counsel.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Makgoka AJA (Navsa, Lewis and Willis JJA and Hughes AJA concurring)

[1] The issue in this appeal is whether a driver involved in a single motor vehicle
accident, and who was not an employee of the owner of the insured vehicle, is
entitled to claim compensation from the appellant, the Road Accident Fund, in terms
of the Road Accident Fund Act 56 of 1996 (the Act).
[2] On 5 February 2011 the respondent was involved in a single motor vehicle
accident. The vehicle he was driving (the insured vehicle) was owned by his father’s
employer, Secuco Food Manufacturers (the insured owner). The accident occurred
as a result of a tyre burst which caused the insured vehicle to leave the roadway and
roll-over. The respondent sustained severe bodily injuries as a result of the accident.
He subsequently instituted action in the Western Cape Division of the High Court
against the appellant for damages. He alleged that the accident occurred as a result
of the insured owner failing to maintain the tyres of the insured vehicle in a safe and
roadworthy condition.

[3] Initially the appellant filed a plea to the respondent’s particulars of claim, but it
subsequently added a special plea. The special plea comprised a main and
alternative plea. The main plea is premised on three grounds. First, it asserted that
because there was no employer-employee relationship between the respondent and
the insured owner, the respondent was not entitled to claim any compensation in
terms of the Act. Second, it alleged that the respondent’s use of the insured motor
vehicle was fortuitous and/or unauthorized. Lastly, the appellant contended that no
legal duty could be ascribed to the insured owner in relation to the respondent. In the
alternative special plea, the appellant denied liability on the basis that the collision
involved a single vehicle accident; and the respondent was solely and entirely
negligent in causing the collision.
[4] The special plea came before the court a quo on 12 June 2016.1 The
respondent led the evidence of his father, ostensibly to meet the appellant’s assertion
that his driving of the insured vehicle at the time of the accident was fortuitous and
unauthorized. The essence of the evidence by the respondent’s father is as follows.
His duties included the delivery of baked goods on behalf of the insured owner to
various retailers. He had a standing arrangement with the insured owner in terms of
which he occasionally requested the respondent to make deliveries on his behalf,
when he was unable to do so himself. It was the same on the day of the collision.
The upshot of his evidence is therefore that at the time of the accident, the
respondent was driving the insured vehicle with the consent of the insured owner.
This was uncontested by the appellant. No other witnesses testified.
[5] The court a quo dismissed the appellant’s special plea with costs. This
conclusion rested mainly on the court a quo’s finding that the respondent’s driving of
the insured vehicle was with the consent of the insured owner, and in the capacity of
a sub-contractor. This, according to the court a quo, established a basis for liability.

1 In terms of a determination made earlier by a different judge in a case-management allocation,
liability and the merits were separated in terms of rule 33(4) of the Uniform Rules of Court, and only
the special plea was to be adjudicated. All other issues, including causal negligence and locus standi,
stood over for later determination.

Aggrieved at the dismissal of its special plea, the appellant appeals with leave of this
court.
[6] It is convenient to set out the relevant provisions of the Act, which are
contained in sections 17, 18 and 19. The gateway for compensation under the Act is
s 17(1), which establishes the liability of the appellant. Section 18(2) limits liability in
certain circumstances, while s 19 excludes liability in certain cases. Section 21(1), on
the other hand, abolishes common law claims against the owner.
[7] Section 17(1) reads:
‘The fund or an agent shall-
(a)
….
(b)
….
be obliged to compensate any person (the third party) for any loss or damage which the third
party has suffered as a result of any bodily injury to himself or herself or the death of or any
bodily injury to any other person, caused by or arising from the driving of a motor vehicle by
any person at any place within the Republic, if the injury or death is due to the negligence or
other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee
in the performance of the employee’s duties as employee….’ (my emphasis.)
[8] Section 18(2) reads:
‘Without derogating from any liability of the Fund or an agent to pay costs awarded against it
or such agent in any legal proceedings, where the loss or damage contemplated in section
17 is suffered as a result of bodily injury to or death of any person who, at the time of the
occurrence which caused that injury or death, was being conveyed in or on the motor vehicle
concerned and who was an employee of the driver or owner of that motor vehicle and the
third party is entitled to compensation under the Compensation for Occupational Injuries and
Diseases Act, 1993 (Act No. 130 of 1993), in respect of such injury or death ….’
[9] Section 19 provides that the appellant shall not be obliged to compensate any
person in terms of s 17 for any loss where neither the driver nor the owner of the
motor vehicle concerned would have been liable but for s 21. Section 21(1), in turn,
abolishes certain common law claims. It provides that no compensation in respect of
bodily injury to or the death of any person caused by or arising from the driving of a

motor vehicle shall lie against the owner of a motor vehicle or the employer of the
driver.
[10] In this court, counsel for the appellant submitted that the respondent’s claim is
not covered by the provisions of the Act. Counsel submitted further that the only
instance where a driver involved in a single motor vehicle accident would be entitled
to claim against the appellant is in terms of s 18(2) of the Act. This is where persons
conveyed in or on the insured vehicle are employees of the driver or owner of the
vehicle. Because the respondent was not being conveyed in or on the insured vehicle
as an employee of the insured owner, so went the argument, s 18(2) did not apply to
the respondent.
[11] In this context, so the argument proceeded, a driver in a single motor vehicle
accident, such as the respondent, does not qualify as a ‘third party’ for purposes of
the Act. In the circumstances, it was contended, the respondent’s claim did not fall
within the ambit of the Act, but lies at common law. Moreover, it was submitted that
because such a claim is not excluded by s 21 of the Act, it would be against public
policy to apply an extensive interpretation of the Act to create a remedy for claimants
under such circumstances. In the alternative, it was argued that the bodily injuries
and loss suffered by the respondent were neither caused by nor arose from the
driving of the insured vehicle, but resulted from a tyre burst.
[12] I do not agree with the construction placed on s 18(2) by the appellant’s
counsel. The sub-section does not create a right of action. Its purpose, as is clear
also from the heading of the section, is to limit certain claims under s 17 where the
third party is conveyed in or on the insured vehicle, and who was an employee of the
driver or owner of the insured vehicle. In those instances, the third party’s claim lies
in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993
(COIDA) and the Act. The third party’s compensation recovered in terms of COIDA is
to be deducted from the award made in terms of the Act, to avoid double
compensation. It is common cause that the respondent was not an employee of the
insured owner at the time of the accident, and therefore s 18(2) and COIDA are not

applicable to him. But does this mean that he does not have a claim in terms of the
Act? I consider that question below.
[13] A useful starting point is to consider the effect of s 17(1), read with s 21(1). As
stated already, the latter section abolishes the right of an injured claimant to sue the
wrongdoer at common law. Section 17(1), in turn, substitutes the appellant for the
wrongdoer. It does not establish the substantive basis for liability. The liability is
founded in common-law (delictual liability). Differently put, the claim against the
appellant is simply a common-law claim for damages arising from the driving of a
motor vehicle, resulting in injury. Needless to say, the liability only arises if the injury
is due to the negligence or other wrongful act of the driver or owner of the motor
vehicle. See Jansen JA’s explanation in Da Silva and Another v Coutinho 1971 (3)
SA 123 (A) at 139A-H, with regard to the provisions of the Motor Vehicle Insurance
Act 29 of 1942 (one of the predecessors to the Act).
[14] Corbett JA summed up the position in Evins v Shield Insurance Co Ltd 1980
(2) SA 814 (A). Explaining, with reference to ss 21, 23 and 27 of the Compulsory
Motor Vehicle Insurance Act 56 of 1972 (one of the predecessors to the Act) he
stated the following at 841E-G:
‘To a great extent the Act represents an embodiment of the common-law actions to damages
for bodily injury and loss of support where the bodily injury or death is caused by or arises
out of the driving of a motor vehicle insured under the Act and is due to the negligence of the
driver of the vehicle or its owner or his servant. Then in place of, and to the exclusion of, the
common- law liability of such persons is substituted the statutory liability of the authorized
insurer. Sections 21, 23(a) and 27 indicate that the statutory liability of the authorized insurer
is no wider than the common-law liability of the driver or owner would have been but for the
enactment of the Act (indeed in certain instances it is narrower – see ss 22 and 23(b)) and
that this statutory liability is dependent upon the existence of a state of affairs which would
otherwise have given rise to such a common-law liability. [T]he negligence upon which
liability under s 21 hinges is the culpa of the common law and, save in certain specified
instances, the compensation claimable under s 21 is assessed in accordance with the
common-law principles relating to the computation of damages.’

[15] I now consider whether the respondent’s claim falls within the ambit of s 17(1).
There are six elements to the section, which can conveniently be broken down as
follows:
(a)
the liability is towards a ‘third party’;
(b)
who had suffered any loss or damage;
(c)
the loss resulted from bodily injury to himself or herself;
(d)
the loss arose from the driving of a motor vehicle;
(e)
the injury was due to negligence or other wrongful act;
(f)
the negligence or wrongful act must be that of:
(i)
the driver; or
(ii)
the owner of the motor vehicle; or
(iii)
of his or her employee.
[16] That the respondent meets the elements in (b); (c); (e); and (f) is not disputed.
The appellant disputes those in (a) and (d). I consider them in turn.
[17] It was submitted on behalf of the appellant that the respondent was the driver,
and as such, cannot be a ‘third party’ for the purposes of s 17. He could only be a
‘third party’ had he been involved in a multiple vehicle collision arising from the
negligence of the insured driver of another vehicle. I disagree. Section 17 defines a
third party as being ‘any person’. This undoubtedly is wide enough to include a driver
involved in a single motor vehicle accident, such as the respondent, provided the
injury arises from the negligence or wrongfulness of the owner, among others.
[18] The appellant focuses on the fact that the respondent was the driver, who, in
its view, was solely negligent in causing the accident. This explains why the
respondent is described in the appellant’s heads of argument as a ‘delinquent driver’.
But the negligence or otherwise of the respondent does not arise in the present
enquiry. As a consequence of its focus on the respondent, the appellant loses sight
of the pertinent provisions of s 17, that liability arises from, among others,

blameworthy conduct of the owner of the insured vehicle. In some instances, this
may have nothing to do with the actual driving.
[19] As was pointed out by Corbett J in Wells and Another v Shield Insurance Co
Ltd and Others 1965 (2) SA 865 (C) at 867H, the section (the predecessor to s 17)
lays down two prerequisites for liability on the part of a registered insurance company
for damages suffered by a third party as a result of bodily injury. These are (i) that the
injury was caused by or arose out of the driving of the insured motor vehicle and (ii)
that the injury was due to the negligence or other unlawful act of the driver of the
insured vehicle, or the owner or his servant. In Santam Versekeringsmaatskappy Bpk
v Kemp 1971 (3) SA 305 (A) at 332C (albeit in a dissenting judgment) Jansen JA
observed that there are two separate enquiries, a fact which is sometimes lost sight
of because in most cases the injury is caused by the negligent driving of the insured
vehicle.
[20] It is clear that the appellant has fallen into the pitfall which Jansen JA
cautioned against. As correctly submitted by counsel for the respondent, it is the
negligent or wrongful conduct of the owner of the insured vehicle that the respondent
relies upon. As such, the focus of liability is not on the driver, but on the insured
owner. The facts of this case differ from what is usually encountered, where two
vehicles collide. In such instances, the appellant steps into the shoes of the negligent
driver. Here, the appellant steps into the shoes of the insured owner, whose conduct
is alleged to have been negligent. For all the above reasons, I have no difficulty in
concluding that the respondent falls within the definition of a ‘third party.’
[21] I now consider whether the respondent’s injuries were caused by or arose
from the ‘driving’ of a motor vehicle, as required in s 17. The term ‘driving’ is not
defined in the Act and it must therefore be given its ordinary meaning. It was
submitted on behalf of the appellant that the respondent’s injuries were not caused
by the driving, but from the unroadworthy condition of the insured vehicle, namely a
worn tyre that burst. To my mind, there is no merit in this submission. The
respondent’s claim is based on the alleged wrongful and negligent conduct of the

insured owner who failed to maintain the tyres of the insured vehicle in a safe and
roadworthy condition, which resulted in the tyre burst, causing the accident.
[22] In Wells, at 870A-H, Corbett J recognised that the negligence or unlawful
conduct may consist of some antecedent or ancillary act or ommission on the part of
the driver or owner of the vehicle such as failing to maintain the vehicle in a
roadworhty condition. He further stated that ‘[w]hether the causal connection
between the injury and the driving would be found would depend upon the particular
facts of the case and whether, applying ordinary, common-sense standards, it could
be said that the causal connection between the death or injury and the driving was
sufficiently real and close to enable the Court to say that the death or injury did arise
out of the driving’.
[23] Jansen JA explained in Santam at 332D:
‘It can however happen that even in the instance of blameless driving of a motor vehicle,
injury or death may result, for example as a result of a wheel which becomes dislodged. If
the dislodgment, and the resultant death or injury is due to the negligence of the owner (for
example because he did not tighten it properly) then the insurer of the particular vehicle is
liable because death or injury occurred, despite the blameless driving…. (My translation from
Afrikaans.)
See also Barkett v SA Mutual Trust and Assurance Co Ltd 1951 (2) SA 353 (A).
[24] For present purposes it must be assumed that the respondent would prove
his allegations against the insured owner at the trial. It is clear that the insured motor
vehicle was being driven at the time of the accident. The tyre burst was dependent on
this fact. As a result, the causal connection between the injuries suffered by the
respondent and the driving is sufficiently real. In the circumstances there is no merit
in the appellant’s contentions.
[25] In sum, I conclude that respondent’s claim falls within the ambit of s 17 of the
Act. Section 18 of the Act is not applicable in the circumstances of this case. The
court a quo was apparently of the erroneous view that for the respondent’s claim to
be within the ambit of the Act, he had to base his claim on s 18, hence its reasoning

that the respondent was a contractor on behalf of the insured owner at the time of the
accident. That was not necessary. The liability of the appellant for the injuries
sustained by the respondent must be found in the plain wording of s 17, read
together with s 21 of the Act.
[26] Before I conclude, it is regrettable that this court has, once again, to give
guidance on how the procedure set out in rule 33(4) of the Uniform Rules of Court
should be applied.2 The process of dealing with a matter under rule 33(4) was
clarified in Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) para 3:
‘Rule 33(4) of the Uniform Rules ─ which entitles a Court to try issues separately in
appropriate circumstances ─ is aimed at facilitating the convenient and expeditious disposal
of litigation. It should not be assumed that that result is always achieved by separating the
issues. In many cases, once properly considered, the issues will be found to be inextricably
linked, even though, at first sight, they might appear to be discrete. And even where the
issues are discrete, the expeditious disposal of the litigation is often best served by
ventilating all the issues at one hearing, particularly where there is more than one issue that
might be readily dispositive of the matter. It is only after careful thought has been given to the
anticipated course of the litigation as a whole that it will be possible properly to determine
whether it is convenient to try an issue separately. But, where the trial Court is satisfied that it
is proper to make such an order ─ and, in all cases, it must be so satisfied before it does so
─ it is the duty of that Court to ensure that the issues to be tried are clearly circumscribed in
its order so as to avoid confusion.’
See also ABSA Bank Ltd v Bernert 2011 (3) SA 74 (SCA) para 21 where the
following was stated:
‘I[f] for no reason but to clarify matters for itself a court that is asked to separate issues must
necessarily apply its mind to whether it is indeed convenient that they be separated, and if
so, the questions to be determined must be expressed in its order with clarity and precision.’
[27] It is by no means clear that these principles informed the decision to separate
issues in this matter. In my view, the issue raised in the special plea is inextricably
linked with the separated issues of locus standi, negligence, and causation. They
could have been ventilated in one hearing. This should have been clear to the court a

2 See for example, Firstrand Bank v Clear Creek Trading [2015] ZASCA 6 paras 9-10; Feedpro Animal
Nutrition v Nienaber [2016] ZASCA 32 para 15; Cilliers & others v Ellis & another [2017] ZASCA 13
paras 12-14; and Transalloys v Mineral-Loy [2017] ZASCA 95 para 6.

quo at the commencement of the trial.   I appreciate that the decision was made in a
pre-trial hearing by a different judge. In my view, there was nothing that precluded the
court a quo from re-visiting the earlier determination by another judge, if it was of the
view that the special plea should be heard in one hearing with the other issues.
[28] For the reasons set out above, the appeal is dismissed with costs, including
costs attendant upon the employment of two counsel.

____________________
T M Makgoka
Acting Judge of Appeal

APPEARANCES
For Appellant:
D Potgieter SC (with him C Bisschoff)

Instructed by:

Z Abdurahman Attorneys, Cape Town

Maduba Attorneys, Bloemfontein

For Respondent:
JW Olivier SC (with him WS Coughlan)

Instructed by:

DSC Attorneys, Cape Town

Rosendorff, Reitz, Barry Attorneys, Bloemfontein
SUPREME COURT OF APPEAL SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
29 March 2018

STATUS
Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49 (29 March 2018)

Today, the Supreme Court of Appeal (SCA) dismissed an appeal brought by the appellant,
the Road Accident Fund, against a judgment of the Western Cape Division of the High
Court, Cape Town. The issue on appeal concerned the question whether a driver involved in
a single motor vehicle accident, and who was not an employee of the owner of the insured
vehicle, is entitled to claim compensation from the appellant, in terms of the Road Accident
Fund Act 56 of 1996 (the Act).
The respondent, Mr Mogamat Ridaa Abrahams was involved in an accident wherein the tyre
of the vehicle burst and as a result, the vehicle rolled-over. He sustained certain bodily
injuries. The vehicle he was driving (the insured vehicle) belonged to and was owned by his
father’s employer, Suceco Food Manufactures (the insured owner). The respondent then
launched proceedings in the court a quo for a claim of damages, alleging that the accident
occurred as a result of the insured owner failing to maintain the tyres of the insured vehicle
in a safe and roadworthy condition. Initially the appellant filed a plea to the respondent’s
particulars of claim, but it subsequently added a special plea. The special plea comprised of
a main and an alternative plea. In the main, the appellant based his claim on three grounds:
first that the respondent did not have an employee-employer relationship with the insured
owner, second that the respondent’s use of the insured motor vehicle was fortuitous and
unauthorized and third that no legal duty could be ascribed to the insured owner in relation to
the respondent and other road users. In the alternative plea, the appellants alleged that the
respondent was solely and entirely negligent in causing the accident and denied liability on
the basis that the collision was a single motor vehicle accident.

The court a quo took the decision to adjudicate over the special plea only, and the rest of the
matters to be determined later.
The special plea was heard by the court a quo in which the respondent led the evidence of
his father. The crux of his fathers’ evidence was that as an employee of Suceco Food
Manufactures, his duties were to deliver baked goods to various retailers and he had a long
standing agreement with the insured owner that when he is unable to make the deliveries,
the respondent will assist. Therefore, on the day of the accident, the respondent was making
deliveries using the insured vehicle with the insured owners consent. This evidence was not
contested and no other witnesses were called.
The court a quo subsequently dismissed the appellant’s special plea with costs. This
conclusion rested mainly on the court a quo’s finding that the respondent’s driving of the
insured vehicle was with the consent of the insured owner, and in the capacity of a sub-
contractor.  This, according to the court a quo, established the necessary nexus between the
respondent and the insured owner.
On appeal, the SCA made a determination giving due regard to ss 17, 18(2) and 19 the Act.
Counsel for the appellants submitted that the only way the respondent would be covered by
the Act, as a single motor vehicle accident driver is under s 18(2), and this fell away because
the respondent is not an employee of the insured owner. It was further submitted that the
respondent does not qualify as a third party for purposes of the Act and that his claim should
be under common law and as such not excluded by s 21 of the Act.
The Court held that the respondents claim does not fall within the ambit of s 18(2) because
indeed so, the respondent at the time of the collision was not conveyed in or on the insured
vehicle as an employee of the driver or owner of the vehicle. The Court further held, in
regards to counsel’s submission that respondent is not a third party, that s 17 defines a third
party as being ‘any person’. This definition, it held, is wide enough to include a driver
involved in a single motor vehicle accident, such as the respondent, provided the injury
arises from the negligence or wrongfulness of the owner, among others.
The Court also considered whether the respondent’s injuries were caused by or arose from
the ‘driving’ of a motor vehicle, as required in s 17.  It held that, at the time of the accident,
the insured motor vehicle was being driven and the tyre burst was dependent on this fact. As
a result, the causal connection between the injuries suffered by the respondent and the
driving is sufficiently real.
In the circumstances, the Court (per Makgoka AJA with Navsa, Lewis and Willis JJA and
Hughes AJA concurring) dismissed the appeal with costs, including costs attendant upon the
employment of two counsel