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2024
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[2024] ZAGPPHC 970
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Dercksen v Road Accident Fund (67254/2021) [2024] ZAGPPHC 970 (3 October 2024)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
HIGH COURT DIVISION, PRETORIA
Case
no: 67254
/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
03 OCTOBER 2024
SIGNATURE
In
the matter between:
DERCKSEN
C J
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MAKHOBA,
J
[1]
The plaintiff instituted an action against the defendant for damages
suffered as a result of injuries
sustained in a motor vehicle
accident that occurred on 9 January 2019.
[2]
The only issue before court is merits. The issue of quantum is to be
postponed
sine die
.
[3]
On the date of trial the defendant was not represented and an attempt
to settle the matter did
not yield any results. Counsel addressed the
court, and the court asked him to file heads.
[4]
During submissions by counsel he handed an affidavit by the plaintiff
(CaseLines 05-3) setting
out under oath how the accident happened.
[5]
It is trite that the onus rests on the plaintiff to prove his case on
balance of probabilities
see
Pillay v Krishna
,
1946 SA
946.
[6]
In his affidavit, plaintiff says the following “I cannot
remember how the accident happened
and or the mechanisms surrounding
the accident. I also cannot remember whether or not I was a driver or
passenger at the time of
accident”.
[7]
The plaintiff’s affidavit is the only evidence under oath in
respect of merits.
[8]
Counsel for the plaintiff contradicted
the above affidavit in his heads of argument. He submits
as follows
(CaseLines 19-3) “ 2.5 From the available evidence, it is clear
that no negligence can be attributed to the Plaintiff
as the
Plaintiff was a passenger in the vehicle when the accident occurred
between the first and second insured drivers..”
[9]
In my view the submissions by counsel for the plaintiff are not
supported by available evidence
uploaded on CaseLines.
[10]
I am further of the view that in the absence of any evidence under
oath on how the collision happened, the
court cannot find that the
plaintiff proved his case on balance of probabilities
[11]
I make the following order:
11.1
Plaintiff’s claim on the merits is dismissed.
11.2
Defendant to pay plaintiff’s cost on scale “A”.
MAKHOBA
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
AND RESERVED JUDGMENT: 28 AUGUST 2024
JUDGMENT
HANDED DOWN ON: 03 OCTOBER 2024
Appearances
:
For
the Applicant:
Adv
R Kooverjie (instructed by) Gildenhuys Malatji Incorporated
For
the Respondent:
N/A.