Kotze v Road Accident Fund (Case No. 16725/2022) [2025] ZAWCHC ___ (24 July 2025)
The judgment has been marked REPORTABLE by the Western Cape Division of the High Court. It clarifies the standard of care expected from agricultural vehicle drivers entering public or farm roads, the evidential burden in reconstructing collisions on private farm roads, and the approach a court should adopt when expert evidence is based primarily on photographs and secondary materials. Because rural collisions involving tractors and motorcycles are common yet often under-litigated, the judgment is significant for both personal-injury practitioners and insurers, particularly the Road Accident Fund, whose liability was fixed at one-hundred per cent.
The judgment does not expressly reference earlier authorities; the court determined liability primarily on the factual matrix and the application of general principles of delict and negligence.
Road Accident Fund Act 56 of 1996
Apportionment of Damages Act 34 of 1956
Uniform Rules of Court (Western Cape Division) – rules dealing with costs and expert evidence, though no specific rule number is quoted in the text.
The plaintiff, Mr Ryno Kotze, sued the Road Accident Fund for damages arising from injuries he sustained when the insured driver, Mr Nicholas Thomas Willemse, drove a tractor with an attached spray tank from an orchard onto a gravel road and into the path of the plaintiff’s motorcycle. After hearing viva voce and expert evidence, the court found that the collision was caused solely by the tractor driver’s negligence. The Fund was held liable for 100 % of the plaintiff’s proven damages and was ordered to pay party-and-party costs, including counsel’s fees on scale B and the qualifying fees of the plaintiff’s accident-reconstruction expert.
First, whether the plaintiff established negligence on the part of the insured driver.
Second, whether a causal link existed between that negligence and the collision.
Third, if both drivers were negligent, whether apportionment was appropriate and, if so, in what ratio.
The court held that the tractor driver failed to keep a proper lookout and entered the gravel road in circumstances where he could not see oncoming traffic until the tractor’s nose occupied nearly half the roadway. That conduct constituted negligence, was the effective cause of the collision and there was no contributory negligence attributable to the plaintiff. Accordingly, the defendant Fund is liable for the entirety of the plaintiff’s damages and the associated costs.
The accident occurred at midday on 9 June 2021 on a six-metre wide gravel road running alongside naartjie orchards on a farm near Saron in the Western Cape. Mr Kotze, wearing a helmet and travelling at approximately 20 km/h, was riding his Yamaha motorcycle toward the farm manager’s house for lunch. Simultaneously, Mr Willemse emerged from between the orchard rows driving a tractor that towed a spray tank. Because of the acute angle at which the orchard rows met the road, the tractor had to swing wide, occupying a significant portion of the gravel road.
When the motorcycle first became visible to the tractor driver, the tractor’s nose already protruded roughly 2.5 metres into the road. Mr Kotze applied his brakes and attempted to swerve left, but the motorcycle’s right flank struck the metal weights mounted on the front of the tractor. The motorcycle came to rest in the direction it had been travelling; the plaintiff fell near the tractor’s right front wheel and sustained bodily injuries.
Photographs taken after the event show horizontal scrape marks on the tractor’s front weights and impact damage to the motorcycle’s right fuel-tank area and engine-cooling fins. No warning boards, flags or signage had been placed at the orchard entrance, and the plaintiff testified that such warnings had never been used on the farm during his two-year employment there.
The court had to determine, first, whether the insured driver’s conduct fell below the standard of the reasonable driver by failing to keep a proper lookout, failing to yield before entering the gravel road and failing to place warning signs. Second, it was necessary to decide whether that negligence factually and legally caused the collision. Third, if the insured driver was negligent, the court needed to consider whether any negligence on the plaintiff’s part contributed to the damage and, consequently, whether apportionment under the Apportionment of Damages Act should apply.
Acting Judge Parker began by assessing the credibility of the lay witnesses. The plaintiff’s account was found to be consistent, corroborated by the physical damage patterns and uncontested by any neutral witness. In contrast, the insured driver did not testify, and his hearsay statement to the Fund was of limited probative value.
The court then evaluated the expert evidence of Mr Barry Grobbelaar, a mechanical engineer specialising in accident reconstruction. Although he had not examined the scene in situ, his analysis of scaled photographs, Google Earth imagery, and the known tractor and motorcycle dimensions was meticulous. He demonstrated that the tractor driver’s seating position prevented him from seeing down the road until a significant part of the tractor was already on the carriageway. This design feature, coupled with the acute orchard exit angle, meant that a prudent driver should have stopped at the orchard edge, looked both ways and only proceeded when the road was clear. The insured driver failed to do so.
Finally, the court considered whether any negligence could be attributed to the plaintiff. The road surface contained thick sand, requiring close attention to balance. The plaintiff’s speed, helmet use and immediate evasive braking were all reasonable in the circumstances. On the evidence, there was no basis for a finding of contributory negligence. Consequently, section 1 of the Apportionment of Damages Act did not come into play, and full liability rested with the Fund.
The court issued a declaratory order that the defendant Road Accident Fund was 100 % liable for all damages the plaintiff may prove at the future quantum hearing. It further ordered the Fund to pay party-and-party costs, inclusive of counsel’s fees on scale B and the qualifying fees of the expert witness, Mr Barry Grobbelaar.
A driver emerging onto a public or farm roadway must keep a proper lookout, and where visibility is impeded by vehicle configuration or terrain, the duty to stop and observe carefully before entering the road is heightened.
Expert evidence based on secondary material may be accepted where the expert’s methodology is transparent, the materials are reliable and the conclusions logically flow from the data.
In the absence of proven contributory negligence, a defendant found negligent is liable for the entirety of the plaintiff’s loss; the Apportionment of Damages Act only applies once contributory negligence has been established on a balance of probabilities.