Limpopo man loses RAF claim after he was hit by a car in a tavern fight over a bucket

A Limpopo man’s claim from the Road Accident Fund (RAF) failed after the North Gauteng High Court in Pretoria determined that he was not a victim of a hit and run. Instead, the court determined that he had been involved in a fight where a car was used as a weapon.

Oscar Mashengani was hit by a car in the early hours of January 1, 2019, after his opponent, Tendani Edwin Ramunenyiwa ran him over following a fight at Fish Point Tavern in Vleifontein, Louis Trichardt. 

The fight started after the tavern owner switched off the music and asked Mashengani and his friends to leave the premises. Mashengani asked the owner to lend him a bucket in order to carry the liquor that was remaining - his request was not denied.

However, Ramunenyiwa was against the idea, and an argument ensued between the two men, and later escalated into a physical fight.

When they were separated, Ramunenyiwa went to his car and drove it towards Mashengani and his friends - hitting Mashengani. When he allegedly tried to run him over for the second time, he was stopped by bystanders at the scene.

Mashengani was swiftly taken to Vleifontein clinic for medical care, while an attempted murder case was subsequently opened against Ramunenyiwa. During police questioning, Mashengani admitted that he had slapped Ramunenyiwa during a fight and he was later run over.

"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," he said to police.

Mashengani's statement was supported by his two friends who were present on the day of the incident.

However, when claiming RAF, Mashengani failed to mention that he was actually involved in a fight, instead, he said he was a victim of a hit and run accident.

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

In court, his friends were not called, and he testified as a single witness. He admitted that he got into a fight over a bucket. He claimed that he went to the tavern on December 31, 2018. He then left for the park as there were artists who were performing to welcome the new year. He left the bucket filled with his alcohol.

He returned to the tavern at 5:30am with the intention to collect the bucket and that's when a fight broke out. He disagreed with his friend's statement that they left after the tavern owner switched off the music. He denied being under the influence of alcohol, although he had been drinking liquor from 12pm until 5:30 am.

Judge Graham Nasious Moshoana noted that Mashengani's statement to the police never mentioned that the accident was a hit and run.

"This 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 Section 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.

"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," said Judge Moshoana.

According to Judge Moshoana, the evidence indicated the driver intentionally used the vehicle as a weapon. Hence there was a case of attempted murder as opposed to a case of reckless and negligent driving.

"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," he said.

Judge Moshoana said Mashengani failed to prove negligence committed by the driver, instead, what was clear was the driver intended to run him over and RAF is not liable to compensate.

sinenhlanhla.masilela@iol.co.za

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