In September 2025, the High Court held the Road Accident Fund (RAF) 100% liable for damages arising from a collision involving a 13-year-old boy pedestrian. The court rejected the RAF’s attempt to apportion the blame on the basis of the child’s contributory negligence and ordered punitive costs for the RAF’s untenable stance. The judgment illustrates the principles governing children’s capacity for fault.
The parties presented a stated case recording that the claimant, then 13 years old, was walking on the sidewalk when he was struck from behind by a speeding vehicle and that the accident was caused by the negligent driving of the insured vehicle. The RAF contended that although the claimant was a minor, he had the necessary capacity for fault (culpae capax) and insisted on a 5% apportionment for alleged contributory negligence.
The court was required to determine whether the claimant, at age 13, was culpae capax at the time of the incident. South African law presumes that a child under 14 years lacks the capacity for negligence (culpae incapax), a presumption that may be rebutted by the party alleging negligence. The RAF bore the onus to establish that, in the circumstances, the claimant appreciated the specific danger and was sufficiently mature to regulate his conduct accordingly.
The court reaffirmed the presumption that children under 14 years are culpae incapax and emphasised that capacity is a factual inquiry tied to the particular risk and conduct at issue. On the agreed facts, the claimant was walking on the sidewalk and was hit from behind by a speeding vehicle. To rebut the presumption, the RAF had to prove that the claimant appreciated the danger of vehicles approaching from behind and failed to take precautions a reasonable person would have taken in those circumstances. The court found no facts supporting such an inference. Rather, the probabilities suggested either a lack of appreciation of the full import of the danger or that, even if generally aware of road risks, the claimant did not have the maturity to act in accordance with such appreciation at that moment.
The RAF was unable to rebut the presumption and the court held that the claimant was shown to be culpae capax at the time of the accident. The RAF was found liable for 100% of the plaintiff’s proven damages.