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[2023] ZAGPJHC 848
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Gwizi v Road Accident Fund (2020-2948) [2023] ZAGPJHC 848 (10 July 2023)

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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO:
2020-2948
DATE OF HEARING: 5
th
May 2023
REPORTABLE
OF INTEREST TO OTHER
JUDGES
10.07.23
In
the matter between:
GWIZI
“SIBANDA”ABSALOM
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
CAJEE
AJ:
1. This is an application
for
default judgment following the striking out of
the Defendant’s defence by Mdalana-Mayisela J on the 14
th
of December 2021 for its failure to comply with court orders and
rules of court aimed at ensuring that the matter was trial ready.
2. At the hearing of the
matter, which was held in open court, Adv. van Wyk appeared for the
Plaintiff. He applied for a separation
of issues between liability
and quantum and for the matter to proceed only on the issue of
liability. I granted the application.
I further ordered that I would
require the Plaintiff to testify in the matter.
3. Mr. Mdlovu, from the
Road Accident Fund unit in the office of the State Attorney
represented the Defendant. He sought to intervene
and cross examine
the Plaintiff only on the discrepancy between the name appearing in
the police accident report (OAR) and that
appearing in his identity
card and asylum seeker permit. I declined his request in light of the
fact that the Defendant’s
defence had been struck out. I
however allowed him to be present in court and take notes while the
Plaintiff was being lead.
4. Before dealing with
the testimony of the Plaintiff, I set out below a short chronology of
relevant events leading up to this
application:
4.1.  The Plaintiff
was allegedly involved in a motor vehicle accident on the 10
th
of April 2018 at 19h00 in the evening. He was allegedly a pedestrian
at the time. The identity of the driver or make and registration

number of the vehicle are unknown.
4.2.  A claim was
lodged with the Defendant on the Plaintiff’s behalf by his
attorneys of record on the 25
th
of June 2019 encompassing
the following documents:
4.2.1. An RAF1 claim
form with the completed statutory medical claim form by Dr. Izak
Stephanus van der Westhuizen dated the 14
th
of February
2019. In it, Dr. van der Westhuizen records that the Plaintiff was in
hospital from the 11
th
of April 2018 to the 21
st
of May 2018. He records that the Plaintiff suffered a dislocation
fracture of the right ankle. These documents can be found at
pages
008-4 to 008-15 of caselines.
4.2.2. An Accident
Report Form (OAR) purportedly from the Dobsonville Police Station
which appears to have been completed either
on the 15
th
of
April 2018 (15/04/2018) or the 15
th
of September 2018
(15/09/2018). It is difficult to make out, but appears to be closer
to the latter date than the former. It also
bears a stamp dated the
15
th
of August 2018 (15/08/2018) from the Parkview Police
Station on the last page. This document appears at pages 008-17 to
008-20
of caselines. According to the section dealing with “brief
description of the accident” on the form the following is

recorded:
“
I was crossing
Bram Fischer Road and a motor vehicle came speeding  and bump
me. I did not clearly see the make and registration
number of motor
vehicle that bumped me. The motor vehicle which bumped me did not
stop.”
4.2.3. Copies of the
hospital records which appear at pages 008-21 to 008-34 of caselines.
4.2.4. A statutory
affidavit by the Plaintiff in terms of section 19(f)(i) of the RAF
Act 56 of 1996, commissioned at the Linden
Police Station on the 24
th
of May 2018. This document appears at pages 008-36 to 008-39 of
caselines. The following description of how the accident occurred
is
recorded as follows at page 008-37:
“
I was standing on
the pavement when an unknown private car knocked me down”
There is a rough sketch
showing the point of impact on the side of the road well outside the
road surface appearing at page 008-38
of caselines.
4.2.5. A copy of the
Plaintiff’s Zimbabwe identity card, which appears at page
008-40 of caselines.
4.3.  Summons was
issued on the 31
st
of January 2020 and served on the
Defendant on the 3
rd
of February 2020.
4.4.  A plea
emanating from the offices of Maluleke, Msimang and Associates, the
Defendant’s erstwhile attorneys of record,
was served on the
4
th
of March 2020. They subsequently withdrew as the
Defendant’s attorneys of record on the 17
th
of
September 2020. All subsequent process and notices were served on the
Defendant directly at its offices at No. 10 Junction Avenue,

Parktown, which was reflected as the last known address of the
Defendant in the Notice of Withdrawal as Attorneys of Record. It
is
noted from paragraph 4 of the plea that it does not contain an
admission that the Plaintiff complied with the relevant provisions
of
the Road Accident Fund as far as the lodgement of the necessary and
statutorily required documentation is concerned. This issue
was thus
one that the Plaintiff was still required to prove at the hearing of
this matter. A copy of the plea can be found at pages
002-10 to
002-14 of caselines.
4.5.  An order
compelling the Defendant to comply with several requests in terms of
the rules of court was granted by Windell
J on the 4
th
of
October 2021. The Defendant failed to comply and its defence was
struck out on the 14
th
of December 2021.
5. The Plaintiff was lead
by Adv. van Wyk. He testified that:
5.1.  He was injured
in a motor vehicle accident on the 10
th
of April 2018. He
was a pedestrian at the time.
5.2.  The accident
happened at around 19h00 on the street that separates Bram
Fischerville and Roodepoort. It is a two way
road, with a lane meant
for travel in each direction. There were no street lights and the sun
had already set. The road was straight.
5.3.  He was on his
way from Roodepoort to Bram Fischerville and had almost completed
crossing the road with his left leg already
on the pavement when he
was knocked down by a red vehicle which had swerved to avoid a
pothole on the road. The vehicle did not
have its lights on.
5.4.  He never saw
the vehicle approaching as it had no lights. The vehicle that went
past just prior had its lights on. There
was no way for him to avoid
the collision.
5.5.  There was
space for the insured vehicle to go past, but because it was trying
to avoid a pothole, it ended up colliding
with him. The pothole is
still there and hasn’t been repaired in all this time.
5.6.  He immediately
felt the impact on his right leg when he was hit by the vehicle.
After hitting him, the insured driver
braked as the Plaintiff’s
leg was still attached to the vehicle. The insured driver than
reversed, apologised to the Plaintiff,
and drove off leaving him
lying there on the side of the road.
5.7.  He called his
girlfriend who came about ten minutes later and called the ambulance.
The ambulance personnel, after treating
him, took him to Chris Hani
Baragwanath hospital.
6. The Plaintiff further
testified that his name is Absalom Gwizi. He was referred to the RAF1
claim form and asked if he was present
when it was completed. The
Plaintiff said he was unable to read the document.
7. The Plaintiff was
asked if at some point he went to report the matter to the police
station. He testified that he was given a
call from a number while he
was in hospital to call back. When he left hospital he went to the
police station where measurements
of his right leg were taken. As to
why police officers would want to take measurements of his injured
leg is unexplained.
8. The Plaintiff
confirmed that the document appearing at page 008-40 of caselines was
his Zimbabwean Identity Card. His name is
reflected at Absalom Gwizi
thereon and his date of birth as the 4
th
of June 1979. He
further confirmed that the document appearing at page 008-55 of
caselines was his South African asylum seeker
permit. According to
this document his first name is reflected as Absalom and his surname
as Gwizi. It further reflects his date
of birth as the 4
th
of June 1979 and his Nationality as Zimbabwean. It allows him to
study and work in South Africa as is due to expire in May 2024.
9. The Plaintiff was
thereafter referred to the police accident report (OAR) appearing at
page 008-17 of caselines, and asked why
the name of Absalom Sibanda
appeared thereon, and not Absalom Gwizi. He testified that Sibanda
was his clan name, not his surname,
and that his girlfriend gave
these details to the hospital. The hospital records also reflect his
name as Absalom Sibanda. As to
how this name came to be reflected on
the OAR is unexplained.
10.  The Plaintiff
testified that he was in hospital for about six weeks and that the
internal pin placed in his right leg
was still there and was
uncomfortable. This would be consistent with the RAF1 statutory
medical report.
11.  Upon
questioning by me the Plaintiff testified that:
11.1. He was born in
Zimbabwe on the 19
th
of October 1979. This is different
from the details appearing on his identity card and asylum seeker
permit.
11.2. He came to South
Africa in 2002 and has been renting the same shack in Bram
Fischerville since his arrival. The rental is
presently R650 per
month. He stays there alone and has access to an outside toilet.
11.3. He delivers
hardware material for a living and averages between R1500 and R1600
per day, but not every day. He used to earn
an average of R10000 per
month. He used to hire a truck but couldn’t remember how much
he used to pay to do so.
11.4. He reported the
accident at Dobsonville police station some months afterwards. He
told the police that the vehicle that collided
into him was a red
vehicle and gave the same version to the police and his attorneys
that he gave in court. He denied giving them
the version contained in
the statutory affidavit appearing at page 008-37 of caselines.
11.5. On the evening in
question he was going from Roodepoort to Bram Fischerville after
having purchased some paraffin.
11.6. He had drunk two
beers about thirty minutes before the incident.
12.  When I asked
about an entry in the hospital records appearing at page 008-25 of
caselines reflecting that he was intoxicated,
the Plaintiff testified
that he would not be able to argue with that, as his breath was
tested before he was taken for X-rays.
13.  Apart from the
anomalies appearing on the police accident report (OAR) regarding the
date it was completed, how the Plaintiff’s
clan name of Sibanda
instead of his surname of Gwizi came to be on it, and why it bore a
stamp from a police station other than
the one where the accident was
reported, it contains a version at odds with what the Plaintiff
testified to in court or that appearing
in the statutory affidavit.
Nowhere therein is there a mention of the car that collided into the
Plaintiff as being red in colour,
nor that it swerved to avoid a
pothole, nor that it was driving with its lights off, nor that the
driver stopped and apologised
before driving away. If it was
completed on the 15
th
of April 2018, this would have
happened at a time when the Plaintiff was still in hospital. If it
was done on the 15
th
of September 2018, it begs the
question as to why this was done so long after the statutory
affidavit in terms of section 19(f)(i)
was commissioned, or why it
bears a stamp of the 15
th
of August 2018 (15/08/2018) from
the Parkview police station when the document emanates from the
Dobsonville police station.
14.
The version
given in the statutory affidavit is completely at odds with the
version in the police accident report and with the version
given in
court. In addition, the Plaintiff by his own admission was under the
influence of alcohol at the time. A case may be made
out that there
was non-compliance with the provisions of section 19(f)(i)
[1]
of the RAF Act 56 of 1996. See in this regard the case of Nonxago v
Multilateral Motor Vehicle Accidents Fund
[2]
,
which dealt with the similarly worded provisions of article
48(f)(i)
[3]
of the Schedule to
Act 93 of 1989, which was the predecessor of section 19(f)(i).
15.  In Nonxago
supra, the last sentence of paragraph [34] of the judgment reads as
follows:
“
The position is
thus that the plaintiff’s attorney wittingly and deliberately
submitted affidavits to the defendant that were
false in material
respects. To countenance such conduct would be to negate the purpose
of article 48(f)(i). The comments made earlier
concerning an
affidavit being a solemn document which could be accepted as being
reliable, i.e., as being true in the sense of
being honest, come into
play. The two documents do not satisfy these requirements. In my
judgment, where the shortcomings in the
affidavit concerned false
statements of material facts and where such statements were wittingly
and deliberately included therein,
the calculated effect of which was
the misleading of the defendant and the perpetration of a fraud on
it, there can be no suggestion
of proper or substantial compliance
with the provisions of article 48(f)(i).”
16.  In the present
case if the version contained in the statutory affidavit is true the
Plaintiff’s testimony in court
is false and vice versa. They
cannot both be true, although both may be false. If the version in
the statutory affidavit is false,
either the Plaintiff or his
attorney or both conspired to submit an affidavit that is false in
material respects. If so, the requirements
of section 19(i)(f) have
not been complied with and the Plaintiff’s case stands to be
dismissed. If the version given in
court is false, than it has to be
rejected in which case the Plaintiff has not discharged the onus
resting on him.
17.  Adv. van Wyk
argued that an apportionment should be applied in light of all the
contradictions between the statutory affidavit,
the version appearing
in the police report, the version testified to in court and the fact
that the Plaintiff, on his own version
was drunk at the time of the
accident. However, before a court can do so, a finding needs to be
made as to which of these versions,
or aspects thereof, reflect the
probability of what happened on the evening in question.
Unfortunately no such finding can be made
on the evidence before
court.
18.  Adv. van Wyk
further argued that an adverse inference of negligence against the
insured driver should be drawn from the
fact that he drove away after
the collision. This again presupposes that the Plaintiff should be
believed when he says that he
was knocked down by a motor vehicle.
Not only am I unable to make this finding, but even if I could, the
mere fact that the insured
driver drove away or may not have reported
the accident cannot, on the evidence before court, be used to impute
negligence on his
or her part.
19.
In the case
of Goodenough NO v Road Accident Fund
[4]
at paragraph [15] the following was said:
“
This
brings me to the further fact contended for by the appellant, namely
that the driver who had collided with Modise failed to
stop after the
collision and drove away after rendering assistance. On a proper
analysis of the evidence it is apparent however
that a positive
finding of this 'fact' cannot be based on direct evidence, but is in
turn also dependant on an inference from other
facts. This latter
inference is in itself not justified on the available evidence. One
simply does not know what happened after
the collision. It is just as
possible that the driver did take Modise to the hospital. It is true
that the driver did not report
the matter to the police, as he should
have done. Whether such failure gives rise to an inference of
negligence on the part of
a driver involved in a collision is, of
course, dependant on all the circumstances of the particular case.
Numerous other possible
explanations spring to mind. The driver could
have been driving without a licence or the vehicle could have been
unlicensed or
the driver could have been at a place where he should
not have been. Or, as suggested by Botha JA in his minority judgment
in Motor
Vehicle Assurance Fund v Dubuzane
1984 (1) SA 700
(A)
706G-H:
'A feeling of guilt
coupled with a desire to escape the consequences of self-perceived
culpability, is but one possible explanation
of the driver's conduct
amongst a host of possible explanations which are consistent with an
absence of negligence on the driver's
part.' “
20.
In the full
bench appeal decision of Road Accident Fund v Moeti
[5]
at paragraph [15] Mynhard J in penning the unanimous judgment said
the following:
“
In my view the
finding of DE VOS, J, that the driver of the insured
vehicle was negligent, is clearly wrong. The court
does not know, for
instance, what damage was done to the insured vehicle, was it damaged
on the side or on the front part thereof;
and, consequently, whether
he could have run into the side of the vehicle as it was passing; nor
does the court know where on the
road the accident occurred; the fact
that the deceased was lying near the middle of the road does not
prove that he was hit at
that point, he could have been flung there
as a result of the impact. The court also does not know whether the
deceased tried to
cross the street or whether he stepped into the
road in front of the approaching insured vehicle. The court does not
know whether
there were cars parked on the side of the road which
probably shielded the deceased from the approaching driver, until he
stepped
into the road from behind a parked vehicle. The fact that the
deceased was highly intoxicated would have caused him to behave
irrationally,
a matter of common knowledge; and the court does not
know whether he did so behave. That could have caused him to step
into the
road at an inopportune moment when a collision was
inevitable.
In regard to the fact
that the driver did not stop after the accident, the court knows that
he drove off because he was afraid of
being assaulted. That is
certainly an acceptable explanation and by no means proves that he
had a guilty conscience. One cannot,
in my view, infer from the fact
that the driver did not stop after the accident, that he was
negligent in causing the collision.
The present case is
therefore a text book example, in my view, of the court being
"utterly in the dark as to the actual circumstances
under which
the collision occurred" as was said by BOTHA, JA in his
minority judgment in
Motor Vehicle Assurance Fund v Dubuzane
1981 1 SA 700
(A) at 708F. See also
Mpofu v Multilateral Motor
Vehicle Accident Fund
[2000] 2 All SA 238
(Tk).”
21.
In
the present case there may be any number of explanations consistent
with the non-negligence of the insured driver for why he
or she drove
off or didn’t report the accident. Amongst others, being in an
unfamiliar place after dark may be one such explanation.
22.
In
the premises, the Plaintiff’s action stands to be dismissed.
23.
Before
concluding, I highlight once again the unsatisfactory supine attitude
to litigation adopted by the RAF that lead in this
case to the
striking out of what was clearly a meritorious defence, at least as
far as the issue of liability is concerned. In
the recent case
of
L.N
and Another v Road Accident Fund
[6]
in the
Pretoria
High Court Davis J described the RAF as being a “
perpetually
recalcitrant or delinquent litigant”. It is clearly not
fulfilling its mandate of properly investigating and defending

unmeritorious claims, like the present one.
24.
This
is in no way meant to be a criticism of what I am told are the
seventeen odd legal practitioners belonging to the RAF unit
of the
State Attorney in Johannesburg. Most appear to be very conscientious
and hard working. Unfortunately they appear to be totally
overwhelmed
by the sheer volume of matters in court that they have to deal with,
and are only seeking to intervene in matters at
the proverbial
twelfth hour, without an adequate opportunity to investigate and
prepare long after the Defendant’s defences
are struck out for
failure to comply with court orders aimed at ensuring matters before
court are trial ready by the time that
they are heard. These legal
practitioners are doing the work of a much larger number of RAF panel
attorneys and their employees
and advocates who previously dealt with
these matters. The unit appears to be severely under resourced and
under staffed.
25.
There
may be valid criticisms of the previous model of appointing panel
attorneys who in turn in appropriate cases briefed advocates
to deal
with matters in court. I won’t express an opinion on the issue.
However, the current model appears to be even worse
and far less
effective than what it replaced.
26.
I
make the following order:
26.1.
The Plaintiff’s claim is dismissed.
CAJEE AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
APPEARANCES:
COUNSEL
FOR THE PLAINTIFF:
Adv.
J. van Wyk
INSTRUCTED
BY:
Van
Der Elst Inc
COUNSEL
FOR DEFENDANT:
Mr.
E. M. Mdlovu
INSTRUCTED
BY:
State
Attorney
DATES
OF HEARING:  5
th
May 2023
DATE
OF JUDGMENT: 10
th
July 2023
[1]
The section reads as follows:
The
Fund or an agent shall not be obliged to compensate any person in
terms of section 17 f or any loss or damage-
(f)
if the third party refuses or fails-
(i)
to submit to the Fund or such agent, together with his or her claim
form as prescribed or within a reasonable period
thereafter and if
he or she is in a position to do so, an affidavit in which
particulars of the accident that gave rise to the
claim concerned
are fully set out;
[2]
[2005] 4 All SA 567 (SE)
[3]
The article read as follows:
“
The
MMF or an appointed agent, as the case may be, shall not be obliged
to compensate any person in terms of Chapter XII for any
loss or
damage –
(f)
if the claimant refuses or fails –
(i)
to submit to the MMF, or the appointed agent, together with his
claim form, as prescribed by the Board, or within a reasonable

period thereafter and if he is in a position to do so, an affidavit
in which particulars of the accident that gave rise to the
claim are
fully set out;
[4]
(441/2002)
[2003] ZASCA 81
(15 September 2003)
[5]
(A2115/04)
[2007] ZAGPHC 10
(7 March 2007)
[6]
(43687/2020)
[2023] ZAGPPHC 274 (20 April 2023)