REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA


Case Number: 15034/2020



In the matter between:




In the matter between:


OSCAR MASHENGANI Plaintiff

and

ROAD ACCIDENT FUND Defendant


Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 18 November 2025.

Flynote: Where the evidence, holistically considered, demonstrates that the
motor vehicle collision occurred where the driver had the intention to harm and
injure – the RAF is not statutorily obliged to compensate the injured or harmed
person. The liability of the RAF arises only in instances where the driving of the
motor vehicle was negli gent. If inte ntional collisions are to be covered by the
RAF, then a case of intention must be pleaded and cannot be advanced only in
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE

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evidence during a trial . Intentional collisions do not amount to an accident –
mishap that is unlooked -for. Where negligence is pleaded , the pleader is
required to prove negligence on the part of an insured driver through evidence.
Failure to do so is a failure to discharge the onus of proof and the plaintiff must
fail.
Held: (1) The RAF is absolved from the instance . Held: (2) There is no order as
to costs.


JUDGMENT
MOSHOANA, J


Introduction
[1] Section 3 of the Road Accident Fund Act (RAFA)1 states that the object of the
Road Accident Fund (RAF) shall be the payment of compensation in accordance with
the RAFA for loss or damage wrongfully caused by the driving of motor vehicles. It is
perspicuous from the provisions of this section that payment of compensation is only
possible in accordance with the provisions of the RAFA. At common law, a delictual
claim arises if a party suffers damages as a result of the wrongful conduct of another
party. The present action agitates the legal question whether the RAF attracts liability
in an instance where the delictual act was intentionally committed by the driving of a
motor vehicle.

[2] Section 17 of RAFA deals with the question of the liability of the RAF.
Importantly, the RAF shall be obliged to compensate any person (third party) for any
loss or damage which the third party has suffered as a result of any bodily injury to
himself or herself caused by or arising from the driving of a mot or vehicle by any
person at any place, if the injury is due to the negligence or other wrongful act of the
driver or of the owner of the motor vehicle.


1 Act 56 of 1996 as amended.

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[3] The above said, before Court is a delictual action against the RAF, instituted by
the plaintiff, Mr Oscar Ma shengani. The action came before this Court as a default
judgment request. For reasons unnecessary to canvass in this judgment, the RAF was
in default. Regarding the issues that came up for determination, the merits and
quantum of the plaintiff’s claim remained in dispute.

[4] It is needful, at this embryonic stage , to record in this judgment that when
counsel for the plaintiff was outlining the merits of the present action , he drew the
attention of this Court to a sworn witness statement occurring in a criminal docket
opened for a criminal charge of attempted murder as against the alleged insured
driver. From that statement, it emerged that the alleged insured driver actually used
the motor vehicle to intentionally injure the plaintiff . This Court raised concern s
regarding the liability of the RAF where the wrongful act was committed intentionally
and requested counsel for the plaintiff to address the concerns.

[5] The initial stance taken by counsel for the plaintiff was that section 26 of the
RAFA renders the RAF liable in such an instance . This turned out to be a wrong
submission in law, since section 26 deals with regulations. As a fall-back position,
counsel submitted that section 17(1) of the RAFA caters for both negligent and
intentional driving of a motor vehicle. This submission was , appropriately so, in my
considered view, later jettisoned. Given the debate around the liability of the RAF, this
Court suggested to counsel that it might be necessary to receive oral evidence from
the plaintiff, in order to establish what actually transpired on the day in question. It later
turned out that this suggestion had presented a golden opportunity for a volte face.
When the plaintiff took the stand to testify, he painted a completely different case to
that set out by the sworn statements in the attempted murder docket. This Court later

that set out by the sworn statements in the attempted murder docket. This Court later
understood why the volte face was made, when during oral submissions , counsel
correctly conceded that where the wrongful act is intentional, the liability of the RAF is
statutorily excluded. Such would leave the plaintiff with a common law delictual claim
against the alleged insured driver or the owner of the motor vehicle.


Background facts and evidence

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[6] On the New Year’s Day – 01 January 2019, the plaintiff and his two friends, like
many other people, enjoyed the festivities that come with the ushering of a new year.
They, ultimately, found themselves at a place known as the Fish Point Tavern, situated
in the Vleifontein area at the town of Louis Trichardt. In the early hours of the morning,
the Tavern owner implored the plaintiff and his friends to leave. He eventually switched
off the music and asked the plaintiff and his friends to leave the premises. The plaintiff
then asked the Tavern owner to lend him a bucket in order to contain the liquor that
was remaining at the time they were requested to leave . The Tavern owner acceded
to the request.

[7] One Tendani Edwin Ramunenyiwa, the alleged insured driver, was apparently
opposed to the idea of the plaintiff taking a bucket belonging to the Tavern. As a result,
an argument ensued between the plaintiff and Mr Ramunenyiwa over the removal of
the bucket. This argument culminated in a physical scuffle between the two . Both
assaulted each other until other patrons of the Tavern separated them. In order to
continue with the fight, Mr Ramunenyiwa proceeded to his motor vehicle, drove it and
aimed it at the plaintiff and his friends. Indeed , out of that action of aiming his motor
vehicle at the plaintiff and his friends, he ran over the plaintiff. When he wanted to run
him over for the second time , he was prevented from doing so by the people around
the scene. As a result of the acts of Mr Ramunenyiwa, as described above, the plaintiff
sustained bodily injuries and received medical attention at Vleifontein clinic.

[8] As a sequel , an attempted murder case was registered at the Bandelierkop
SAPS under CAS 08/01/2019. Of significance for the purposes of this action, is that
on 03 January 2019, at around 16h00, the plaintiff, under oath, stated, amongst other
things, the following:

“I did not give anyone permission to hit me with the vehicle . I would like further police

“I did not give anyone permission to hit me with the vehicle . I would like further police
investigation into this matter.”

[9] Further, the plaintiff stated the following:

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“After I had slapped him with my open hand he had let go of the bucket , while I was on
the gravel road with my friends , I noticed that there was a white private car that was
running towards me and my friends. The vehicle came straight at me, and I was walking
from the side of the road.”

[10] Mr Kgaugelo Machete, one of the plaintiff’s friends , who was present and had
observed the scuffle, stated the following under oath:

“The two started fighting people separated them. The accused went to his car and got
inside and followed us behind and we tried t o get out of the road to the grass, and he
came straight to the grass and hit Oscar with the car and he fell down.

The car went pass Oscar and make (sic) a U-turn and wanted to come back but people
came to stop the car because Oscar the complainant was still on the ground and he
reversed the car and drove off…”

[11] Mr Sidzani Caswell Mukwevho, another friend who was present and witnessed
the scuffle, stated under oath as follows:

“He started clapping the complainant with his right hand and the complainant wanted to
defend himself and I held him and took the complainant outside the yard telling him to
go home. While on the way the suspect came driving his car towards us and I run (sic)
away from the road, and the complainant fell down the suspect over run (sic) him with
his car and stopped at the distance.

He made a U-turn and drove back to the complainant . While driving back he noticed a
crowd of people standing on the road he then drove back and speed (sic) off…”

[12] Based on the recordal made on the police docket, the case of attempted murder
was still being processed in the criminal Court. The last recordal was made on 05
August 2019. As at the hearing of this action, the details appertaining the attempted
murder case were not revealed to this Court. On 21 September 2020, the plaintiff
deposed to a section 19(f) affidavit. Tellingly, he did not disclose the fight between him

deposed to a section 19(f) affidavit. Tellingly, he did not disclose the fight between him
and the alleged insured driver. Contrary to his and his friends’ sworn statements in the
police docket, he stated the following:

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“On or about 1 January 2019 at approximately 5h30 I was involved in a hit and run whilst
walking back from Fish Point Tavern, on a gravel road.

The accident occurred when a white private motor vehicle coming from behind hit my
left leg and I rolled on the ground.”

[13] This Court must interpose. Section 19(f)(i) requires that an affidavit in which the
particulars of the accident that gave rise to the claim concerned are fully set out, must
be submitted to the RAF . When the section 19(f) affidavit is compared to the sworn
statements referenced earlier, it is clear that the particulars of the alleged accident
were not fully set out.

[14] Before this Court, the plaintiff , without tendering the evidence of his friends ,
testified as a single witness in his case. Briefly, his testimony was that on the day in
question, he was at the Tavern. Whilst there, he bought liquor and put it in a bucket.
Later, he asked the Tavern owner, who happens to be his friend, to lend him a bucket
to carry his liquor . When he wanted to leave with the bucket, Mr Ramunenyi wa
prevented him to do so. They started arguing. Ultimately, a fight broke between them
and people separated them. Whilst he was about 30 meters away from the Tavern
premises, walking with his friends outside the gravel road on the right-hand side, facing
the on -coming traffic , he heard people s houting “hey” and he looked back. As he
looked back, a vehicle came driving fast and knocked him on the left foot, he fell down
and rolled. He could do nothing to avoid being collided with. He described the gravel
road as a two-way carriage road.

[15] He continued and testified that he does not know why he was knocked. The
driver of the vehicle moved away from his lane of travel and came to the side where
he was walking with his friends. He was told at the hospital that the name of the driver
was one Edwin. From the clarity seeking questions of the Court, he testified that he

was one Edwin. From the clarity seeking questions of the Court, he testified that he
and Edwin were fighting. He came to the Tavern at 12h00 on 31 December 2018 (New
Year’s Eve) and left for the park, where other festivities with some music artists were
happening, at around 12h30. He left a bucket with liquor in it. He returned to the Tavern
from the park at 05h30 with a view to collect the bucket of liquor, and that is when the
fight broke. He disagreed with the versions stated by his friends that they left after the

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Tavern owner switched off the music. He was not under the influence of alcohol ,
although he had been drinking liquor from 12h00 midday until 05h30 the following
morning.


Analysis
[16] The pleaded case (facta probanda) of the plaintiff is outlined as follows in the
amended particulars of claim:

“4.1 On 01 January 2019 the Plaintiff was a pedestrian when he was involved in a
motor vehicle collision when he was struck from behind by a motor vehicle bearing a
registration number unknown to him, which was there and then driven by Edwin
Ramunenyiwa (hereinafter referred to as the “insured driver”).

4.2 The accident occurred at the Gravel Road near Fish Point Tavern, Vleifontein.”

[17] Notably, contrary to the section 19(f) affidavit , the pleaded case is not one of
“hit and run”. No allegation is made that he was walking outside the right-hand side of
the two-way gravel road facing the on-coming traffic. Other than alleging that he was
struck from behind, he does not allege where exactly near the gravel road did the
motor vehicle struck him. Like most litigants do, he made the usual and oft-recited
allegations of imputing negligence on an insured driver in a pleading. This Court must
pause and mention that it is inappropriate for litigants to throw every allegation of
negligence, even those that did not occur in a particular case . For an example , in a
passenger’s claim , it is inappropriate to allege a failure to take cognisance of a
pedestrian as a road user. As it shall be demonstrated later, pleading requires clarity
and particularity. A catch -all approach is not awaited from a pleader. Similarly, a
spaghetti approach should not be adopted by a pleader, since it also disaccords with
particularity and clarity. Significantly, it was not alleged, as one of the negligent acts,
that Edwin moved from his normal lane of travel and directed the vehicle towards the
plaintiff. It is by now settled law that a party cannot plead one case and testify to a

plaintiff. It is by now settled law that a party cannot plead one case and testify to a
different case at the trial.

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[18] It is also rested law that the onus of proof, where negligence against the insured
driver is alleged, lies with the plaintiff.2 In terms of section 16 of the Civil Proceedings
Evidence Act,3 judgment may be given in any civil proceedings on the evidence of any
single competent and credible witness. Credible evidence entails a believable one.
Generally, a trier of facts must take into account the totality of the evidence and should
not adopt a selective approach. Part of the conspectus of the evidence in this action
is the sworn statements in the police docket a nd the section 19(f) affidavit. Regard
being had to the totality of the evidence, t his Court is not satisfied with the credibility
of the plaintiff’s evidence. Firstly, his oral evidence is inconsistent with his own version
given under oath in the statement and the sectio n 19(f) affidavit . Secondly, his oral
evidence is diametrically opposed to the sworn statements by his friends, who were
with him at all material times.

[19] Clearly, his friends were competent witnesses and must have been available to
elucidate the facts, but they were not called. An adverse inference capable of being
drawn is that their evidence would have contradicted, and not corroborated that of the
plaintiff,4 particularly on the manner in which the collision happened. Such inference
is already laid bare by having regard to their sworn statements. Another factor which
this Court finds difficult to ignore is the state of sobriety of the plaintiff on the day in
question. Although before Court he testified that he was not drunk, this Court finds it
hard to believe his evidence on this score.

[20] He spent a considerable amount of time at the park where he enjoyed the
festivities whilst drinking liquor. He, on his own version, returned to the tavern almost
18 hours later, having been drinking at the park. When his evidence on this score is
compared to the versions in the sworn state ments, he and his friends were at the

compared to the versions in the sworn state ments, he and his friends were at the
Tavern the whole time , hence the owner asked them to leave and switched off the
music. That he only returned at 05h30 to collect his bucket of liquor is nothing but a
recent fabrication. His account of the events on the day in question ought to be
carefully considered, taking into account what his state of sobriety was. There is a

2 See Goodenough NO v RAF [2003] ZASCA 81.
3 Act 25 of 1965 as amended.
4 See Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 AD.

9

greater possibility of artifice and misstatements in his oral testimony almost six years
later.

[21] On the full conspectus of the material placed before this Court , it cannot be
doubted that the alleged insured driver used the motor vehicle as a weapon in a fight.
There was no accident. It is not surprising that a case of attempted murder as opposed
to that of reckless and negligent driving was, in this instance, registered . The
registration of such a case snuggly fits with the happenings of that fateful morning .
The plaintiff himself stated under oath that he did not give any person permission to
hit him with a motor vehicle. It is only in an assault or attempted murder situations that
such statements are stated in order to unsettle a possible defence of consent being
given. In a negligence situation, the issue of consent does not feature. This is a clear
case of intentional wrongful act as opposed to negligent wrongful act. In the witnesses’
stand, the plaintiff attempted a negligent wrongful act case. Metaphorically, this
attempt became a square pack in the round hole because the water was already
muddied by the submissions made by counsel regarding the sworn statements made
by the two friends. The fact that an attempted murder case was registered ,
investigated and presented to Court for prosecution and adjudication is in of itself an
inadvertent revelation that the alleged insured driver intended to hit the plaintiff with a
motor-vehicle.

[22] On the totality of the evidence, inclusive of the sworn statements availed to this
Court, the alleged insured driver, in the course of the undisputed fight, intentionally
drove straight towards the plaintiff in order to injure him and had he not been stopped
by the crowd, he would have ran the plaintiff over again. These actions of the alleged
insured driver are incapable of being categorised as a mistake. They are adorned with
some measure of calculation. They appear to be premeditated. On these facts, there

some measure of calculation. They appear to be premeditated. On these facts, there
can be no case of negligence. The alleged insured driver used the motor vehicle as a
weapon in a fight that had ensued between him and the plaintiff. This is no different
from a situation where two people who are engaged in a physical fight and one of them
enters a house, for instance, and picks up a weapon, be it a knife, gun or baseball bat,
in order to win the fight. Counsel for the plaintiff submitted that in order to show
intention, it was required of the insured driver to testify that he acted with an intention.

10

I disagree. The insured driver , like the RAF, do not bear any onus to prove liability.
Nevertheless, in law, an intention, also known as dolus, is nothing but the state of
mind. There are various forms of dolus. Dolus eventualis is one of them. Such form of
intention operates on the basis of the foreseeable possibility. Where the wrongful act
is intentional, the RAF does not attract liability. In Garnier v Kilkenny and ICBC 5, the
following submission, which should, in my consider ed view, apply with equal vigour
under the RAFA, was made:

“Where there is an intentional act with intent to bring about the loss or damage, as in the
case at bar, public policy precludes recovery under automobile liability coverage. The
incident giving rise to this claim did not involve an “accident”…”6

[23] The Court in Garnier, accepted the submission only in an instance where the
intentional criminal act was committed by the insured.7 In S v Desai,8 it was held that
a motor vehicle can certainly be used as a “weapon of death”. In R v Riddell,9 a
situation arose where a vehicle was used as a weapon in an alleged self -defence.
Briefly, the facts in Riddell were as follows. The injured mini -cab driver having driven
the accused from a particular address to her home, he was told to wait while the
accused went into the house to collect the fare money. For a while, the accused did
not emerge from the house. Late r she emerged with changed clothes, got into a VW
Polo vehicle and drove off. The mini-cab driver followed her, and after failing to get her
to stop using flash lights and hooter, he stopped his vehicle in front of hers. He came
out of his vehicle and stopped in front of the Polo. The Polo then slowly edged forward,
hitting the mini-cab driver several times on his knees, as he retreated backwards. At
some point he sat on the bonnet of the Polo. The Polo accelerated causing the mini -
cab driver to fall off the bonnet as the Polo drove away. At her criminal trial the Polo

cab driver to fall off the bonnet as the Polo drove away. At her criminal trial the Polo
driver raised self-defence. In other words, she used the Polo as a weapon to ward off
what she believed to be an attack on her. Similarly, the actions of the alleged insured

5 2006 BCPC 357 (CanLII)
6 Para 15.3 of Garnier.
7 Para 35 of Garnier.
8 1983 (4) SA 415 (N)
9 [2018] 1 All ER 62; [2017] EWCA Crim 413.

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driver are no different from those of the Polo driver. They are all intentional and criminal
in nature.

[24] Undoubtedly, the RAF operates more like an insurance. There is a school of
thought that holds that the term “accident” in the insuring agreements of occurrence
and accident-based liability policies requires that the act causing the complained -of
injurious effects be fortuitous. The guiding rule adopted by this school is that intentional
acts cannot be accidents .10 As the name of the defendant suggests, it is a fund
purposed for accidents and not for intentional acts .11 Therefore, accidents involve
fortuity and not intention.12 So, where, as it was the case in Motladile v Road Accident
Fund,13 negligence is not proven by the plaintiff, the liability of the RAF does not arise.
Counsel for the plaintiff correctly conceded that in an instance where the wrongful act
is intentional, the RAF does not attract liability in terms of section 17 (1) of the RAFA.
However, counsel persisted with an argument that the alleged insured driver was
negligent in that he failed to take cognisance of the rights of other road users , more
specifically that of the plaintiff.

[25] In that regard, it is of importance to be mindful of the distinction between facta
probanda or primary factual allegations which a pleader must make , and facta
probantia, which are secondary allegations or evidence upon which the pleader will
rely to prove the primary allegations. The evidence of the plaintiff, taken together with
the sworn statements, proves that the alleged insured driver did not simply fail to take
cognisance of the plaintiff. On the probabilities, he did take cognisance of him and in
order to perpetuate the fight, he decided to drive straight at him with only one frame of
mind, to injure the plaintiff using his car. Therefore, the facta probantia do not support
the facta probanda. It must axiomatically follow that the plaintiff has failed to discharge

the facta probanda. It must axiomatically follow that the plaintiff has failed to discharge

10 Scheuermann “Intentional acts cannot be accidents – a critique of a legal error ” (2016) 12 UC Law
Business Journal 301.
11 See Messersmith v American Fidelity Co . 133 N.E 432 (N.Y. C.t Apps. 1921) with regard to the
meaning of ‘accident’.
12 See Kvaerner Metals Div. of Kvaerner U.S Inc v Commercial Union Ins Co. 908 A.2d 888, 898.
13 [2025] ZAGPPHC 229. See also McQueen v Village Deep G.M. Co Ltd 1914 TPD 344 at 347, where
De Villiers JP commented that the most difficult question which arises in the present case is whether
the facts as stated by the magistrate can be said to constitute an ‘accident’ within the meaning of the
law.

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his onus of proof .14 The word ‘accident’ presupposes negligence as demonstrated
above. In a situation involving an intention, there is no accident involved.

[26] In a Canadian case of Downer v The Personal Insurance Company,15 the Court
of appeal concluded that the physical assault involved in that case did not amount to
an accident. In casu, the fact that the alleged insured driver used a vehicle to assault
and almost attempting murder on the plaintiff does not mean that the plaintiff was
involved in an accident. In Canadian Indemnity C v Walkem Machinery & Equipment
Ltd,16 the Supreme Court of Canada defined the word ‘accident’ as “any unlooked-for
mishap or occurrence”. The conduct of the alleged insured driver is not one suggestive
of an unlooked-for mishap or occurrence. The Canada Criminal Code, section 267(a)
thereof, provides that assaulting using a motor vehicle as a weapon is punishable by
law.17

[27] This Court has no doubt in its mind that the alleged insured driver perspicuously
used his motor vehicle as a weapon in a fight. When he collided with the plaintif f, no
mishap or unlooked -for occurrence took place. In law, negligence is the failure to
exercise the degree of care that a reasonable person would use in similar
circumstances, which results in harm to another. It is not intentional wrongdoing, but
a careless act or omission. In order for the acts of the alleged insured driver to snuggly
fit an accident and ne gligence, the above must be conspicuous. As indicated at the
dawn of this judgment , on proper consider ation of section 17(1) of the RAFA, the
liability of the RAF only arises in instances where the injury arose from the negligent
driving of a motor vehicle.

[28] Where, as in this case, negligence is not present, the RAF is not liable.
Negligence must not only be alleged, it must also be proven. It is not sufficient for a
plaintiff to interpret perspicuous intentional acts of a driver of a motor vehicle to mean

plaintiff to interpret perspicuous intentional acts of a driver of a motor vehicle to mean

14 Regarding onus see National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (ECD),
Selamolele v Makhado 1988 (2) SA 372 (V) and Grove v RAF [2011] ZASCA 55.
15 2012 ONCA 302 (CanLII).
16 [1976] 1 S.C.R 309 at 316.
17 See R v Gosse 2016 BCSC 812 (CanLII) where a Toyota Highlander was used as an assault weapon.

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negligence. Section 17(1) refers to ‘or other wrongful act’ of the driver or the owner of
the motor vehicle or his or he r employees in the performance of their duties. Is
intentional driving over of a pedestrian a wrongful act? In my view , it is indeed a
wrongful act. In law, a wrongful act is an action, error , or omission that is considered
illegal, immoral, or unjust and causes harm to another person. In South African law,
there are five elements of a delict; namely, (a) conduct; (b) wrongfulness; (c) fault; (d)
causation; and (e) damage .18 Undoubtedly, claims for a loss or damage against the
RAF are delictual claims.

[29] Regarding the element of fault, two main forms are recognised , namely;
intention (dolus) and negligence (culpa). As to what negligence means, this Court can
do no better tha n what Holmes JA did in the locus classi cus case of Kruger v
Coetzee.19 The fact that fault involves negligence and intention; the legislature is well
aware. If intention was contemplated, the legislature would have expressly stated so,
as it did with negligence. Therefore , it cannot be so that where reference is made to
other wrongful acts, such could be referring to intention as submitted by the plaintiff’s
counsel. The legislature must have been aware that a wrongful act would require an
element of fault in order to be a delict. Where the word ‘or’ is employed in a statute, it
may mean either one or the other. It can also mean one, the other or both. Applying
the Endumeni20 principle, the word ‘or’ must mean both. It is a business -like and
sensible interpretation to read negligence as a form of fault and the other wrongful act
both a s inclusive of each other. It would be absurd to read the other wrongful act
disjunctive from the word negligence. The wrongful act of a driver or the owner must
be one that is negligent and not an intentional one. Some of the possible wrongful acts
seem to arise from section 20(2) of the RAFA. Deemed driving means moving of a

seem to arise from section 20(2) of the RAFA. Deemed driving means moving of a
vehicle from a place it is left, as a result of gravity. It implies negligence for a vehicle
to be left at a place where it may move as a result of gravity. A wrongful act does not
mean fault. Given the fact that the RAFA is a social legislation, it could not have been
the intention of the legislature to accept liability in instances where the insured driver

18 See VM and Another v MEC for Education, Eastern Cape Provincial Department and Others [2020]
ZAECBHC 32 at para 6.
19 1966 2 SA 428 (A).
20 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

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has acted intentionally. The indemnity arising from section 21(1)(a) and (b) of the RAFA
must be referring to a negligent driving mentioned in section 17(1).

[30] Assuming that the phrase “or wrongful act ” introduced an act of intention as
another form of fault, the pertinent question in this matter is that the pleaded case of
the plaintiff is that of negligence as opposed to intention. Since intention has not been
pleaded, that is the end of the enquiry regarding intention as a form of fault. Pleading
intention is the be-all and end-all. In Trope and Others v South African Reserve Bank,21
Grosskopf JA made the following observation:

“It is trite that a party has to plead – with sufficient clarity and particularity – the material
facts upon which he relied for the conclusion of law he wishes the Court to draw from
those facts. It is not sufficient, therefore, t o plead a conclusion of law without pleading
the material facts giving rise to it.” (references omitted)

[31] That there is intention, like there is negligence , is a conclusion of law , which
requires material facts to support it. Even if the other wrongful act equates an intention,
the plaintiff’s pleaded case relies on the other leg of fault , being, negligence.
Supposedly, this was done in order to bring the RAF into the liability fold. Unfortunately,
as indicated earlier, the other unpleaded leg of fault was , on the available evidence ,
properly considered , shown. Negligence is not shown by the conspectus of the
evidence before this Court. To my mind, the other leg of intention implicates the alleged
insured driver in a delictual claim. Because he would have acted intentionally, the
indemnity in section 20(2) would not, in my considered view, operate in his favour.

[32] Accordingly, in my considered view, the plaintiff has failed to discharge his onus
to prove negligence on the part of the alleged insured driver. Only intention was shown,

to prove negligence on the part of the alleged insured driver. Only intention was shown,
and as such , the RAF is not liable to compensate. The evidence presented
demonstrates that the alleged insured driver intentional ly collided with the plaintiff,
thereby causing him bodily injuries. Even if intention al driving creates liability for the
RAF, this Court takes a view that the plaintiff failed to plead a case of intention . On

21 1993 (3) SA 264 (A) at 273A-B.

15

application of the trite principle that a party is prevented from pleading a particular
case and advance a different case at the trial, the plaintiff must still fail.

[33] Because of all the above reasons, I make the following order:


Order
1. The RAF is absolved from the instance.
2. There is no order as to costs.


____________________________
G N MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA


APPEARANCES:

For the Plaintiff: T I Ngwana
Instructed by: Gildenhuys Malatji Inc, Pretoria.

For the Defendant: No appearance.

Date of Hearing: 5 November 2025
Date of judgment: 18 November 2025