So, you are running late for work and the only taxi that stops for you is one that has had its steering wheel replaced with a spanner. Or the exhaust of that bus falls off right as you watch the doors closing behind you. Sounds like a horror movie? Well, often having to take public transport can be, and yet some 63% of the South African population take part in this reality on a daily basis.

An unroadworthy vehicle (including buses, minibus taxis and freight transport vehicles) is defined as one that the owner failed to take for compulsory annual roadworthy tests or for a roadworthy test on change of ownership. The number of vehicles that are unroadworthy increased by 109 185 (40.9%) from 267 691 vehicles at the end of March 2007 to 376 876 vehicles at the end of March 2008.

Well, let's presume that you are a passenger in that motor vehicle, which is clearly not roadworthy, and it is involved in a collision. The consequences could be so dire that the only thing you're left with is regret.

As many of us may know, the Road Accident Fund is responsible for compensating parties who suffer damages as a result of injuries sustained in a motor vehicle collision caused by the negligent driving of another party. The RAF then takes the place of the negligent driver and accepts liability once proven. What happens though, when one voluntarily travels in a motor vehicle which is clearly not roadworthy? Can the RAF still be held liable for damages? Can a person who willingly consents to the driver's act, in the form of either a specific harmful act or an activity involving a risk of harm, complain that a delict has been committed against them?

The answer lies in the defence of volenti non fit injuria, which is a ground of justification and a principle well-known in Roman and Roman Dutch law and undoubtedly well-recognised in South African law. For those unfamiliar with the term, it is a defence which is used in instances where the plaintiff has consented to the harm they suffered, or in instances where the plaintiff is aware of the risks involved in the actions of the defendant, but nonetheless takes part in that activity.

In the case of the passenger who was in the "scorro-corro", he/she observes that the motor vehicle is unroadworthy and accordingly runs a higher risk of being involved in a collision, yet he/she still gets in the vehicle and therefore assumes the risk that he/she may sustain injuries in the likely event that a collision may occur.

The basic requirements of this defence are knowledge, appreciation and consent, however, there are additional requirements which need to be met in order for the defence of volenti to succeed, namely:

  • The plaintiff must have had knowledge of the harm or risk involved in the defendant's conduct, as well as the nature and full extent thereof.
  • Knowledge of the harm or risk involved is not sufficient. The plaintiff must also have appreciated the nature and extent of the harm and the risk involved.
  • Knowledge and appreciation will not suffice. The plaintiff must also have consented to the infliction of the harm or assumed the risk implicit in the conduct. Consent and assumption of risk imply that the plaintiff intended his or her rights to be limited, for the purpose of infliction of the specific harm or exposure to the hazardous conduct. The plaintiff must therefore not only have consented to or assumed the physical harm and risk involved, but also the legal risk of injury. Consent to or the assumption of risk requires the clear intention of restricting one's rights.
  • The defendant's conduct must have fallen within the limits of the consent. Should the conduct violate the terms of the consent, the defence falls away.
  • The consent must extend to all the consequences which may arise out of the conduct.
  • The consent must have been freely given and the risk voluntarily assumed.
  • Consent or voluntary assumption of risk is, of course, a defence only in respect of injuries and harm caused by the materialisation of a risk which was subjectively foreseen, appreciated and assumed by the plaintiff.
  • The requirements for the defence of volenti non fit iniuria are not restricted to the subjective requisites of knowledge, appreciation and consent or assumption of risk. One's freedom of will and capacity to regulate unilaterally the extent of one's rights are not absolute. Individual autonomy is limited by considerations of individual and social responsibility, and public interest requires that the capacity to curtail one's rights should be kept within reasonable bounds. Consent to or assumption of a risk is therefore valid only if it is not considered to be contra bonos mores.
  • Consent or assumption of risk is a unilateral legal act whereby a plaintiff waives or restricts his or her rights in respect of certain harmful conduct by the defendant. In order to constitute a legal act, the will and intention of the consenting party must be manifested by external conduct. Consent or assumption of a risk as particular states of mind must therefore be disclosed by some form of conduct. The consent may also be implicit in the plaintiff's behaviour.
  • Consent or assumption of a risk is a legal act. The execution of a legal act requires in principle that the actor must have the legal capacity to perform a juristic act.
  • Because consent is a unilateral act, one may revoke it at any reasonable time.

In the event that the defendant manages to prove all of the above listed elements, it is likely that the defence of volenti non fit iniuria will succeed. It is, however, important to note that no recorded case of this nature has been decided upon and accordingly no precedent exists. If you have ever utilised South Africa's transport service, you will know that it is not easy to be that "choosy". The consequences of allowing this defence to succeed within the ambit of RAF claims could have dire consequences for the most vulnerable of road users, being those who are forced to utilise public transport.

The Constitutional Court clearly expressed its solidarity with this group of people in the case of Mvumvu v Road Accident Fund. It would be possible to argue that the defence of volenti non fit iniuria creates a situation of unfair discrimination against those who are not in a position to be choosy about their mode of transportation.

Accordingly, until such time as a precedent has been set we would recommend that that you think twice and look thrice before jumping on board that "scorro-corro", even if it does mean irritating the queue marshal or taxi driver.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.