Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)

Main Issue: Delict – pregnant woman injured in motor collision – child subsequently born with brain damage resulting from collision – whether child has action against RAF.

Findings: This is an appeal against the dismissal by High Court, of a special plea raised by the appellant against a claim brought by the respondent, in his capacity as father and natural guardian of his minor daughter, Zukhanye Mtati, in terms of Article 40 of the Agreement set out in the schedule to the Multilateral Motor Vehicle Accidents Fund Act, 93 of 1989. The appellant contends in its special plea that, as the respondent’s minor child was at the time of the collision a foetus in utero, she was not, on what is called a ‘proper construction’ of Article 40, a ‘person’ entitled to compensation. But on the date of its birth the claim for future maintenance based on its expectation of life would have lain and there seems no difference in principle between such a claim and a claim in respect of an unborn but living foetus. Court held that the appeal should be dismissed.