Ryno Kotze v The Road Accident Fund, Case No 16725/2022, Western Cape Division, Cape Town, [2025] ZAWCHC 123 (24 July 2025)
This judgment has been marked REPORTABLE because it provides a detailed application of negligence principles to rural-road collisions involving agricultural machinery and motorcycles. The court’s treatment of visibility, lookout duties, and expert reconstruction evidence offers guidance for future Road Accident Fund litigation. Furthermore, its clear articulation of the standards applicable to apportionment in circumstances where one party alleges exclusive fault ensures that the decision has precedential value beyond the immediate dispute.
The judgment was decided primarily on the facts before the court and did not rely on earlier reported authority. No other cases are expressly cited in the text of the decision.
Road Accident Fund Act 56 of 1996
Apportionment of Damages Act 34 of 1956 (implied in the apportionment debate)
No specific Uniform Rule of Court is cited in the judgment.
The plaintiff, Ryno Kotze, sued the Road Accident Fund for injuries sustained when his motorcycle collided with a tractor driven by an insured driver, Mr Nicholas Thomas Willemse, on a gravel road in Saron on 9 June 2021. The Fund denied negligence, contending that Kotze caused the collision, or alternatively that his own negligence should be apportioned. After hearing fact and expert evidence, the High Court found the tractor driver solely negligent, holding the Fund liable for 100 percent of Kotze’s proved damages and ordering costs on the higher “scale B” with qualifying fees for the plaintiff’s expert.
First, the court had to decide whether the insured driver was negligent in entering the gravel road without adequate lookout or stop-and-yield precautions.
Second, it needed to determine whether that negligence was causally connected to the collision.
Third, the court considered, only in the alternative, whether any apportionment of fault ought to be made.
The court held that the tractor driver failed to keep a proper lookout, entered the road when it was unsafe to do so, and was therefore solely negligent. The plaintiff’s conduct in riding slowly and attempting evasive action was reasonable in the circumstances, meaning that no contributory negligence could be attributed to him. Accordingly, the Road Accident Fund is 100 percent liable for the plaintiff’s damages and must pay party-and-party costs, including counsel’s scale B fees and the expert’s qualifying expenses.
The accident occurred shortly after midday on 9 June 2021 on a six-metre-wide gravel road bordering naartjie orchards on a Western Cape farm. Kotze, wearing a helmet and travelling about 20 km/h on loose sand, rode his Yamaha motorcycle towards the farm manager’s house. As he approached a row of orchards positioned at an acute angle to the road, a tractor, towing a spray tank, emerged from between the trees and began a wide left-to-right turn across the entire roadway.
Kotze first saw the tractor only when it pulled out directly into his line of travel, leaving him with insufficient reaction time. He braked hard and swerved left, but the tractor’s front counter-weights struck the right-hand side of the motorcycle, damaging its fuel tank and cooling fins and throwing Kotze to the ground near the tractor’s right front wheel.
The insured driver later claimed that warning boards had been erected and that the spray tower would have been visible above the treeline, suggesting Kotze should have seen the tractor. Kotze disputed the presence of any warnings and testified that the dense, fully-grown trees obscured both tractor and spray tower. Mechanical-engineer Barry Grobbelaar, testifying for Kotze, reconstructed the scene using photographs, affidavits and Google Earth images and confirmed that the tractor had to protrude about 2.5 metres into the road before its driver could see along the gravel road.
The court had to determine whether the plaintiff discharged the onus of proving the tractor driver’s negligence and its causal connection to the collision. If negligence were established, the court had to consider whether the plaintiff’s own conduct contributed to the accident such that an apportionment of damages under the Apportionment of Damages Act should follow.
In assessing negligence, Parker AJ emphasised the duty of a driver emerging from a concealed entrance to ensure that the roadway is clear before proceeding. The evidence showed that the tractor driver did not stop at the orchard’s edge. Because of the tractor’s design—positioning the driver behind the engine compartment—he would have had to project the nose of the tractor nearly halfway across the six-metre road before obtaining a view to his left. By then it was too late for either vehicle to avoid impact.
The court accepted Grobbelaar’s unchallenged reconstruction, which demonstrated the improbability of the tractor driver’s version that he looked for traffic in time. It also found no credible evidence of the alleged warning boards or flags. The location and pattern of damage on both vehicles corroborated Kotze’s account and contradicted the driver’s assertion that the motorcycle hit the tractor’s left front wheel.
Turning to contributory negligence, the court found Kotze’s 20 km/h speed reasonable for the sandy road surface and accepted his explanation that looking side-to-side could have caused him to lose balance on the thick sand. His immediate braking and swerve constituted the only realistic evasive manoeuvre available. Consequently, no negligence was attributable to him, and the defendant’s plea for apportionment failed.
The court declared the Road Accident Fund 100 percent liable for all damages the plaintiff may prove at the forthcoming quantum hearing. It ordered the Fund to pay Kotze’s costs on the party-and-party scale, including counsel’s scale B fees and the qualifying fees of expert Barry Grobbelaar.
A driver emerging from a concealed or oblique entrance onto a public roadway bears a stringent duty to stop, keep a proper lookout and yield to oncoming traffic that is already upon or imminently approaching the intersection.
Where expert reconstruction evidence aligns with physical damage and objective probabilities, it will be preferred over speculative or self-serving testimony.
Contributory negligence will not be inferred where a plaintiff’s speed is moderate, vigilance is reasonable given the road surface, and immediate evasive action is attempted; the Apportionment of Damages Act will therefore not reduce recovery in such circumstances.