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2023
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[2023] ZAGPJHC 448
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Xolile v Road Accident Fund (6517/19) [2023] ZAGPJHC 448 (9 May 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case No:6517/19
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
25.04.23
In the matter between:
KUMALO
XOLILE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
DEFAULT JUDGMENT
NEUTRAL
CITATION
:
Kumalo
v RAF
(Case No: 6517/19) [2023]
ZAGP JHC 448 (9 May 2023)
INTRODUCTION
[1] This is an
application for default judgment, pursuant to a delictual claim
instituted by the plaintiff, Mr. Kumalo Xolile
,
against the
defendant, the Road Accident Fund.
[2] The matter proceeded
on a default basis because the defendant’s defence was struck
out on 8 October 2021, for its failure
to comply with a compelling
directive issued on 15 July 2021.
[3] The matter was to
proceed on both merits and quantum. I formed the view however, that
the matter was not ripe to proceed on
quantum and limited myself to
the merits of the action.
THE MERITS
[4] The plaintiff resides
in Etsolo in the Eastern Cape and has been so resident since birth.
On or about 17 March 2017, at or near
Lansdowne Road in Khayelitsha,
the plaintiff was walking on the pavement. He was knocked over by a
motor vehicle, which he didn’t
see approaching. The vehicle
left the driveable road area, skipped the pavement and collided with
the plaintiff. The driver
of the unknown vehicle fled the scene
of the accident.
[5] After he was knocked
over by the vehicle, the plaintiff’s friend, who accompanied
him, called an ambulance, which
transported the plaintiff to
the Khayelitsha Hospital, where he was admitted. The plaintiff
sustained numerous injuries in
the accident, notably he lost the use
of his right arm.
[6] The evidence
presented by the plaintiff was compelling and I have no hesitation in
accepting the truthfulness thereof.
[7] It is immediately
apparent that the negligent driving of the driver of the unknown
vehicle, as claimed by the plaintiff in his
Particulars of Claim, was
the sole cause of the accident.
[8] In the result I make
an order herein that the defendant shall be 100% liable for the
plaintiff’s agreed or proven damages
arising from the accident.
ORDER
1. The defendant is 100%
liable for the plaintiff’s agreed or proven damages arising
from the accident.
2.
The
defendant is ordered to furnish the plaintiff with an Undertaking in
terms of
Section
17(4)(a)
of
the
Road
Accident Fund Act, 56 of 1996
, for the costs arising out of the
injuries sustained by him in the motor vehicle collision of 17 March
2017, after such costs have
been incurred and upon proof thereof
.
3. The defendant is
ordered to pay the plaintiff’s costs of suit on party-and-party
scale.
4. The issue of quantum
is postponed
sine die
.
B. FORD
Acting Judge of the High
Court
Gauteng
Division of the High Court, Johannesburg
Delivered: This
judgment was prepared and authored by the Judge whose name is
reflected on 09 May 2023 and is handed down electronically
by
circulation to the parties/their legal representatives by e mail
and by uploading it to the electronic file of this matter
on
CaseLines. The date for hand-down is deemed to be16h00 on 09
May 2023.
Date
of hearing: 25 January 2023
Date of judgment:
09 May 2023
Appearances:
For
the plaintiff:
Adv.
V.J. Chabane
Instructed
by:
Mahlathi
Dlamini Bhengu Inc
For
the defendant:
No
appearance