IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: 14489/21
In the matter between:
RONDENE CHARNAY JANTJIES PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Coram: AG CHRISTIANS AJ
Heard: 20 November 2025
Delivered: 27 February 2026
Summary: passenger in moving motor vehicle lifted emergency brake –
driver no longer in control of vehicle – driver injured – passenger took
control of vehicle by lifting emergency brake – passenger became ‘driver’
for purposes of liability in terms of s 17(1) of Road Accident Fund Act 5 of
1996.
JUDGMENT
Christians AJ
Introduction
1. The primary issue for determination in this matter is whether a
passenger in a vehicle, who causes a motor vehicle collision by
raising the handbrake and causing injury to the driver of the vehicle
in the process, is a “driver” for purposes of section 17(1) of the Road
Accident Fund Act 56 of 1996 (“the RAF Act”).
2. If the answer is in the affirmative, I must decide whether such
passenger was negligent in causing the collision; and whether and to
what extent the RAF is liable to compensate the Plaintiff for the
injuries she sustained as a result of the collision.
The pleadings
3. The Plaintiff alleges that:
3.1. On 4 March 2019 she drove a motor vehicle along Old
Kulbaskraal Road, Malmesbury, a public road;
3.2. One, Zalium George Keating was a passenger in the motor
vehicle1;
3.3. Whilst the vehicle was in motion and being driven by the
Plaintiff, the passenger suddenly, and without warning ,
pulled up the emergency brake (handbrake), causing the
vehicle to lose control and overturn.
3.4. The collision was caused solely as a result of the passenger’s
negligence in that he interfered or took a hold of the steering /
operating mechanism of the motor vehicle while it was in
motion on the public road when it was neither safe nor
reasonable for him to do so.
4. Plaintiff further alleges that she suffered severe injuries as a result of
the collision. She lodged a claim against the Road Accident Fund
(“the RAF”) in terms of the RAF Act.
5. The RAF dispute s liability for her injuries, alleging that the
passenger was not the driver of the vehicle and, therefore, the RAF is
not liable to compensate the Plaintiff in terms of section 17(1) of the
RAF Act. Hence these proceedings.
6. Unsurprisingly, RAF’s plea includes a bare denial of the facts
alleged by the Plaintiff.
The evidence
7. The Plaintiff gave oral evidence and, by agreement between the
parties, the accident report and the police docket were admitted as
evidence.
8. No evidence was presented on behalf of the RAF.
9. The plaintiff testified that, at the relevant time, the passenger was her
boyfriend and they worked together. On the morning in question,
and en route to work, she collected the passenger from his home. He
sat in the passenger seat next to her.
10. The plaintiff recalled that the passenger was ve ry aggravated that
morning because, according to him, he had a computer examination
for which he was going to be late.
11. The weather was clear, the roads were quiet and she had no problems
or issues with her vehicle. She was driving at around 60km/h.
12. While the passenger was complaining and getting frustrated about
being late for his exam, he suddenly pulled up the handbrake. He
gave her no warning and that was the last thing she remembered
before waking up in hospital.
13. She sustained injuries to her legs, arm, spinal cord and face. A
police officer contacted her some time after she returned to work.
14. The Plaintiff’s version was not impugned under cross examination.
15. The accident report dated 4 March 2019 recorded that, according to
an eyewitness who was driving behind the vehicle, the vehicle just
left the road and overturned. The report notes that the driver was
seriously injured and the passenger died on the scene.
Fault and causation
16. In sum, there is no genuine dispute about the truthfulness of the
Plaintiff’s version. It can hardly be suggest ed (and it has not been
suggested) that the passenger acted reasonably in pulling up the
handbrake as he did. There was also no suggestion that the Plaintiff
could have done anything to avo id the collision after the passenger
pulled up the handbrake.
17. I am, accordingly, satisfied that the collision was caused by the sole
negligence of the passenger.
18. The next question is whether the RAF is liable to compensate the
Plaintiff for the injuries she sustained as a result of the collision.
Was the passenger a ‘driver’ as contemplated in the RAF Act?
19. The RAF Act, quite unhelpfully, defines “ driver” as meaning “ the
driver referred to in section 17(1)”.
20. Section 17(1), in turn, provides in relevant part that:
The Fund or an agent shall—
(a) subject to this Act, in the case of a claim for compensation under
this section arising from the driving of a motor vehicle where the
identity of the owner or the driver thereof has been established;
…
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 d riving 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: Provided that the
obligation of the Fund to compensate a third party for nonpecuniary
loss shall be limited to compensation for a serious injury as
contemplated in subsection (1A) and shall be paid by way of a lump
sum.
21. There can be little debate about the fact that, immediately before the
passenger lifted the handbrake, the Plaintiff was the driver of the
vehicle. The question to be answered is whether, in so lifting the
handbrake, the passenger thereupon became the driver for the
purpose of determining liability under the RAF Act.
22. Counsel for the Plaintiff submitted, in the first instance, that this case
falls within the presumption in section 20(1) of the RAF Act that:
For the purposes of this Act a motor vehicle which is being propelled
by any mechanical, animal or human power or by gravity or
momentum shall be deemed to be driven by the person in control of
the vehicle.
23. For the proposition that section 20(1) applies even where the vehicle
is propelled by its own mechanical power, he referred me to the
judgment of B v Road Accident Fund (41110/2013) [2016]
ZAGPPHC 543 (8 July 2016) . While I cannot fault the outcome of
the judgment, I disagree with the (plainly unnecessary) finding that
the presumption in section 20(1) applies where the vehicle is
propelled by its own mechanical power. The court correctly f ound
that the facts of that case established driving in the ‘ordinary’ sense.
In my view, the presumption in section 20(1) is intended precisely to
apply in cases where driving in the ‘ordinary’ sense has not been
established.
24. In Krisann v Road Accident Fund (15257/20) [2022] ZAGPPHC 518
(13 July 2022), the Court adopted the following interpretation:
[19] To properly interpret section 20(1), one should have a look at
the words "propelled by any mechanical, animal or human power or
by gravity or momentum".
[20] If one considers the words "any mechanical" followed by the
words "animal or human power or by gravity or momentum" and
when applying the eiusdem generis rule of interpretation "any
mechanical ...power" is intended to mean mechanical or other power
other than that of the motor vehicle concerned.
25. I agree.
26. In the circumstances, I must determine whether the passenger’s
conduct constitutes driving in the ‘ordinary’ sense.
27. I have not found any authority directly on the point, nor could the
parties direct me to any such authority. It is, therefore, necessary to
consider analogous cases and how courts have, over time, interpreted
and applied the meaning of “drive” and “driver” for purposes of
determining third party insurance (or criminal) liability.
28. With reference to the Motor Vehicle Assurance Act 29 of 1942, the
Appellate Division in Mathie v Yorkshire Insurance Co., Ltd 1954
(4) SA 731 (A.D.) described the purpose of that Act as “ to enable
injured persons… to recover loss or damage caused or arising out of
negligent or unlawful driving; it is not, apparently , aimed at
securing compensation for injuries or death caused by road
obstruction, unless, conceivably, such obstruction is so closely linked
with the driving of a motor vehicle as to be, in eff ect, part of the
negligent or unlawful driving”2.
29. Relying on the above dicta, the Court in Rajamma & Ano., N.O. v
Union & National Insurance 1971 (2) SA 86 (D) imputed liability to
a person who had negligently caused an obstruction by bringing a
vehicle to a stop and leaving it at an inappropriate place , thereby
causing another vehicle to collide with it.3 The identification of the
‘driver’ in such instances has now been codified in section 20(2).4
30. In the oft -cited Wells and Another v Shield Insurance Co. Ltd and
Another 1965 (2) SA 865 (C) Corbett J said:
‘The word “driving”, as used in relation to the insured motor
vehicle, means, ordinarily, in my view , the urging on, directing the
course and general control of the vehicle while in motion and all
other acts reasonably or necessarily incidental thereto. It would thus
include, inter alia, the starting of the engine and the manipulation of
the controls of the vehicle which regulate its speed and direction and
also those which assist the driver and other users of the road, such
as lights, traffic indicators, etc.’
31. In Road Accident Fund v Mkhize (557/2003) [2004] ZASCA 110;
2005 (3) SA 20 (SCA) (30 November 2004) Conradie JA stated,
quite forcefully, that [a] driver obviously drives a vehicle when he or
she propels it by manipulating its controls and [a] person who is in
control of a vehicle is the one who ‘can make it move or not as he
pleases’.5
32. The statement must, as a matter of common sense and logic, also
include manipulating its controls to bring the vehicle to a stop. The
clearest illustration of the point is that, had the Plaintiff herself lifted
the handbrake and caused the vehicle to overturn, there would be no
dispute that her doing so was part and parcel of her driving the
vehicle.
33. But, what then, is the position when a person other than the one
behind the steering wheel does so?
34. Counsel for the Plaintiff referred me to the Canadian case of
Bélanger v. The Queen , 1970 CanLII 222 (SCC), [1970] SCR 567 .
Albeit in the context of criminal negligence, Richie J, writing for the
majority of the Supreme Court of Canada held the following:
“The fact is that the police cruiser was driven from its own lane
directly into the lane reserved for approaching traffic because the
appellant had deliberately grabbed the steering wheel and taken
control from the hands of the constable. Under these circumstances,
with the greatest respect for those who hold a different view, I am of
opinion that for the brief period during which the appellant assumed
control, he was solely responsible for the dangerous driving o f the
cruiser and he was for those few moments “one who drives a motor
vehicle on a … highway … in a manner that is dangerous to the
public…” within the natural and ordinary meaning of those words as
they occur [in the relevant provision of the Criminal Code].”6
35. Counsel for the RAF referred to Van den Heever v Road Accident
Fund (A202/2019) [2020] ZAFSHC 192 (29 October 2020) and
argued that a front passenger, who took control of a vehicle was not
found to be the ‘driver’ of the vehicle. She accordingly a rgued that
Canadian law can find no relevance in South Africa. In my
understanding of the judgment, the argument is misplaced.
36. The issue before the Court in Van den Heever was not whether the
passenger was, at the moment he grabbed the steering wheel, the
‘driver’ for purposes of liability in terms of the RAF Act. The
plaintiff’s claim in that matter was premised on the alleged
negligence of the driver of the vehicle in front of her. In other
words, she did not allege that the collision was caused by husband,
who was sitting next to her and who grabbed the steering wheel
when she swerved to the right. Based on the pleaded case and the
evidence led, the c ourt in Van den Heever found that causation had
not been established vis a vis the driver of the vehicle in front of the
plaintiff’s vehicle.
37. Thus, even if the judgment in Van den Heever was binding on this
Court (which it is not), it would not preclude me from following the
approach adopted in Bélanger.
38. In my view, the approach adopted in Bélanger is eminently sensible.
The question answered is not unique to the specific provisions of the
Canadian Criminal Code. As Richie J said, his conclusion was
premised on the natural and ordinary meaning of “ who drives a
motor vehicle?”
39. The rationale is consistent with the authorities discussed above, all of
which centre the enquiry around who was in control of the vehicle.
40. In Makhubele v Road Accident Fund (3718/2009) [2010] ZAGPPHC
630 (5 May 2010) the court was tasked to determine who was ‘in
control’ of a vehicle for purposes of the presumption in section 20(1)
of the RAF Act. It was common cause that the truck in question
moved as a result of gravity after one Mrs Ratombo had disengaged
the gear to neutral and attempted to start it (the engine failed to run).
She called the plaintiff to help her open the cabin of the truck and, in
the process, the vehicle moved and, evidently, rolled over the
plaintiff. The court held that Mrs Ratombo was ‘in c ontrol’ of the
truck because she had:
“[16] … exercised control by opening the door of the motor vehicle,
inserting the key in the ignition slot, disengaging the gears and
starting the motor vehicle though the engine failed to run. I find her
state of mind to have been to control the motor vehicle. I thus find
her as “the person in control of the vehicle” on the day and time of
the accident.”
41. Thus, because the truck was deemed to have been ‘driven’ in terms
of section 20(1) of the RAF Act, Mrs Ratombo was deemed to be the
driver because she was the person in control of the vehicle.
42. As I have already indicated, this case does not implicate the deeming
provisions of section 20(1) because the vehicle was being driven in
the ordinary sense. And if the vehicle was being driven in the
ordinary sense, then there must be somebody who was driving it. To
my mind, whether we are concerned with section 20(1) or whether
we are concerned with driving in the ordinary sense, the question as
to who the driver was must alw ays resort to the question as to who
was in control of the collision-causing conduct.
43. In this regard, I align fully with the approach that was adopted in
Bélanger. That being so, it seems an artificial distinction to draw a
line between a steering wheel a nd a handbrake when, in reality, a
person who takes control of either of these mechanisms effectively
seizes control of the vehicle itself.
Concluding remarks
44. In response to the argument presented on behalf of the RAF (i.e. that
the RAF cannot, under any circumstances, be held liable for
collisions caused by passengers), counsel for the Plaintiff pointed out
that, on that argument, innocent third parties would be left without a
remedy even in the most deserving of cases. He argued that this
would lea d to absurd results and that the Court should adopt a
purposive interpretation to section 17(1) of the RAF Act. I think the
facts of this case serve to demonstrate the soundness of the
submission.
45. Suppose the Plaintiff’s vehicle had hit a pedestrian . If the argument
advanced on behalf of the RAF is correct, such pedestrian would
have no claim agains t it. But the very purpose of the RAF Act (and
earlier iterations of third party insurance statutes ) is to ensure that
third parties who are injured as a result of negligently or unlawfully
caused motor collision s can adequately be compensated. The
purpose of the RAF Act would be subverted if a pedestrian in this
scenario could not claim compensation from the RAF simply
because the passenger had taken control of the vehicle away from the
driver.
46. And so, i f I am correct that a pedestrian in this scenario would be
entitled to compensation in terms of the RAF Act, then I see no
reason why a driver in the position of the Plaintiff (from whom
control of the vehicle was taken) should not also be so entitled.
47. Lest I be misunderstood, my reasoning in no way suggests that any
negligent act by a passenger, that result s in a collision, will justify a
claim for compensation against the RAF. If, for example, a
passenger p lays the fool and obstructs a driver’s vision whilst the
vehicle is in motion, and thereby causes a collision in some way or
another, such passenger cannot , based on my this judgment, be said
to have taken control of the vehicle . This case is materially
distinguishable from the hypothetical example and I do not purport
to express any view on how a court might determine such a case.
Conclusion
48. On the issue of costs, the main issue in this case is novel and not
uncomplicated. Counsel for the Plaintiff, in particular, made
compelling oral submissions and assisted the court with useful
analogous authorities. For these reasons, I am of the view th at costs
on Scale B is warranted.
49. I thus make the following order:
(a) Defendant is liable for 100% of the Plaintiff’s proven or agreed
damages;
(b) Defendant shall pay the Plaintiff’s costs and, for purposes of
Rule 67A read with Rule 69, such costs shall be on Scale B.
_____________________________
AG CHRISTIANS
ACTING JUDGE OF THE HIGH COURT
Appearances:
For plaintiff: M Oliff
Instructed by: Patterson Breytenbach Inc.
For defendant: C Thomas
Instructed by: State Attorney, Cape Town
1 Mr Keating died as a result of collision. Without intending any disrespect to his memory, I shall refer to
him in the remainder of this judgment as “the passenger”.
2 At 735C.
3 At 89C-E.
4 To avoid any confusion as to my interpretation of section 20(1) in paragraph 23 supra and my
interpretation of section 20(2) here, the former creates a presumption as to whether the specified vehicles
are being ‘driven’, while the latter creates a presumption in relation to the identity of the ‘driver’. See, also,
the discussion in Makhubele v Road Accident Fund (3718/2009) [2010] ZAGPPHC 630 (5 May 2010)
paras 14 – 15.
5 para 4.
6 Page 574.