SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO:1653/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
Signature:
Date: 05/11/2024
In the matter between:
MAKWANE LEPULANA AARON PLAINTIFF
And
ROAD ACCIDENT FUND. DEFENDANT
JUDGMENT
MONENE AJ
[1] The plaintiff an adult male person instituted action proceedings against the
defendant for damages arising from a motor vehicle accident which occurred on 22
May 2021. He alleges that the collision between the motor vehicle he was driving
and another m otor vehicle was caused by the sole negligence of a third motor
vehicle driver who having negligently gotten onto the plaintiff’s driving lane, fled from
the scene and remains unknown.
[2] The defendant has despite proper service failed to defend this ac tion leading
to the plaintiff to approach this court on default seeking before this court; separation
of liability from quantum and an order holding the defendant 100 percent liable for
any subsequently proven damages suffered the plaintiff.
[3] The plaintiff proceeded before this court per default, sought and was granted
leave to prosecute the merits part in terms of Uniform Rule 38(2).
[4] Under cover of affidavit the plaintiff adduced, in brief, the following
uncontested evidence:
4.1 In the default j udgement founding affidavit the following evidence was
led:
4.1.1 The plaintiff was, on 22 May 2021, a driver of a motor vehicle, to
wit, a white Mazda with registration number C […] along the Mamphogo
and Mabintane Road in Maserumule Park in Limpopo Province.
4.1.2 The plaintiff’s motor vehicle collided with a white VW Fox motor
vehicle with registration number D […] driven by one Tau Morathane
Desmond.
4.1.3 The collision of the two motor vehicles was caused solely by a
third unknown motor vehicle driver who upon negligently encroaching
onto the plaintiff’s lane caused the plaintiff to lose control of his motor
vehicle causing the plaintiff to drive his motor vehicle into that of the
second driver.
4.1.4 The unknown driver, in this case the insured driver, did not stop
after the accident.
4.2 This evidence remains uncontested before me.
[5] The plaintiff’s claim in this matter was lodged with the defendant on 11
October 2022.
[6] The defendant was subsequently served with summons commencing action
on 27 February 2023. This was proper service in terms of uniform rule 4(1)(a)(viii).
[7] The defendant is to date in default of filing both the notice to defend and a
plea.
[8] Uniform rule 31(2) (a) leads no room for interpretation beyond its text when it
provides as follows:
“Whenever in an action the claim or, if there is more than one claim, any of
the claims is not for debt or liquidated demand and a defendant is in def ault of
delivery of notice of intention to defend or of a plea, the plaintiff may set the
matter down as provided in sub -rule (4) for default judgement and the court
may, after hearing evidence, grant judgement against the defendant or make
such order as it deems fit.”
[9] Subrule (4) of uniform rule 31 makes it imperative to serve a defendant with a
default judgement application only where a notice of intention to defend has been
filed making it not peremptory to serve the set down if a defendant has not bothered
to file the notice of intention to defend. In casu therefore it was not necessary to
serve the notice of set down on the defendant because no notice to defend was filed.
Service of the set down notice was however still done and that did not jolt the
defendant into any action at all.
[10] In the premises a case for default judgement has, in my view, been
successfully mounted.
[11] In terms of uniform rule 33(4) if it appears to the court that there is a need to
separate issues or convenience cal ls for such separation the court may even mero
motu order a separation.
[12] Seeing that the costs of securing expert evidence for quantum purposes are
exorbitant, at least as seen through the eyes of most indigent and most black people
in this country, and regard being had to the defendant’s unexplained no -show in this
proceedings, it is, in my view, convenient and fair to afford the plaintiff the
opportunity to first be sure of the merits issue before incurring costs attendant to
collecting quantum evidence.
[13] I thus do not struggle to arrive at a conclusion that separation should be
granted as prayed for by the plaintiff.
[14] In all the above premises, I make the following order:
[14.1] The issues of liability or merits and quantum are separated.
[14.2] The defendant shall be liable for 100 percent of the plaintiff’s proven
and/or agreed damages.
[14.3] The issue of quantum is postponed sine die.
[14.4] The defendant shall pay the plaintiff’s taxed or agreed to party and
party costs to date on a high court scale within 30 days of taxation or
agreement.
[14.5] Should the defendant fail to pay the costs in 14.4 above, the plaintiff
shall be entitled to recover interest thereon on the prescribed rate of interest
from the date of mora to date of final payment.
M S MONENE
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard on : 27 June 2024
Judgment delivered on : 05 November 2024
For the Plaintiff/Applicant : S O Mwim
: Instructed Mwim and Associates Inc.
: Tel: - 015 291 2603
: Email: osmwimplk@gmail.com
For the Defendant/Respondent : No appearance