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: 1058/2018
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE
SIGNATURE

In the matter between:

M[...] L[...] M[...] PLAINTIFF

And

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT


MPHELELA AJ:

1. This matter came before court for the determination of both merits and quantum.
It is a claim for loss of support instituted by the plaintiff on behalf of the minor child L[...]
K[...] M[...] born on the 9th April 2014. The plaintiff’s claim arose from a motor vehicle
accident which occurred on the 02nd May 2016 when the deceased Eleck
Mamohlalathuhu was involved in a motor vehicle accident. As a result the plaintiff has
instituted a claim for loss of support against the defendant in the amount of
R1700 000.00

2. The plaintiff has complied with all the statutory requirement in term of instituting a
claim aga inst the defendant under the circumstances. The summonses were issued on
the 21st February 2018 and served with the defendant on the 23rd February 2021. At the
beginning the plaintiff instituted a claim on her behalf and on behalf of her minor child
L[...] K[...] M[...] with identity number 1 [...]. At the time of the accident the minor child
was only two years old when the father passed in the accident.

3. The matter was to proceed on both merits and quantum. The plaintiff did not call
any witness and opted to proceed on papers before court. The plaintiff’s claim is that on
the day of the accident, the deceased was driving a motor vehicle with registration
numbers and letters B [...] when he collided with another vehicle with registration
numbers and letters H [...] driven by one Steven Richard Maube(The Insured driver).

4. The plaintiff in her section 19(f) affidavit indicates that she was having a love
relationship with Elleck Mamohlala Thuli Tau who died on the 02nd May 2016 due to a
motor vehi cle accident. At paragraph 6 of the affidavit she indicates that “My boyfriend
was employed by Dwasriver Chrome Mine , Mpumalanga Province and was financially
supporting me and my children and all dependent on him for maintenance and financial
support”. Th e plaintiff further submits that her child and herself had suffered and will
continue to suffer loss of support due to her boyfriend untimely death which was caused
by the negligent driving of the insured driver. The normal(general) standards grounds of

negligence are indicated in her statement. It must be indicated that she was not at the
scene of the accident and that she also did not witness the accident.

5. The plaintiff counsel submitted that they only need to proof one percent
negligence against the ins ured driver and as such they are of the view that, they will
proof the required negligence against the insured driver. I must indicate from the
beginning the lack of preparation from the counsel of the plaintiff in this matter in that
the attorney of recor d had to literally take over the matter by showing the counsel
almost each and every documents including affidavits which he must direct the court to.
Unfortunately because of lack of preparation, the counsel still could not understand
what the attorneys w as directing him to in that when directed to refer the court to certain
documents including statements, he will only read statements word by word until the
end and makes no submission thereafter. It is not clear what he wanted the court to do
with such rea ding of the file during the proceedings.

6. However, he indicated that he did not read the entire file as he only read the
docket as he believe with the contents of the docket he will be able to proof the 1%
required to succeed with the entire claim for loss of support. The counsel then continue
reading the investigation diary by the police officers. It must also be indicated that
nothing much in -favour of the plaintiff’s case came out of the reading of the diary. The
diary only confirms the accident and the parties who were involved in the accident,
further to that it also confirms that the Polo vehicle (Driven by the deceased) was
overtaking when the accident occurred. Nothing much came out of the reading of the
diary.

7. The counsel was further referred to sta tement by the Police officer which he read
on record and made no submission. The statement by the Officer also describe what
they found on the scene and how they took over the scene of the accident. There is
again no explanation on how the accident occurre d. The counsel was also made to refer
to statement by the driver of the other vehicle (Truck) which was also involved in the
accident. The truck driver statement read as follows: “ On 2016 05 -02 at about 20h50 I

was driving on the Sekhukhune Lydenburg Road when I was about to approach
Boschfontein Bridge. I met two trucks heading to Lydenburg and the Polo trying to
overtake in a high speed. The Polo wanted to head on with my Truck, I tried to avoid it,
it then hit me on the Deaf of the truck and the right f ront Tyre and loss control of the
truck. And the Police attended the scene and I was taken to hospital Lydenburg”.

8. Upon reading the statements the counsel submitted that a case has been proved
on behalf of the plaintiff for loss of support and that the pl aintiff should succeed on
100% in respect of merits. When engaged as to on how did the plaintiff prove
negligence of the insured driver in that the evidence before court is that the deceased
was overtaking when the collision occurred. The counsel for the p laintiff indicated that
on the basis that there is a case for culpable homicide opened by the police against the
insured driver, it gives the plaintiff the required 1% to prove negligence against the
insured driver.

9. It must be indicated that, there was a s erious lack of preparation and proper
investigation on this matter from both the counsel and the Attorneys for the plaintiff.
Both parties should have seen that this matter is not ready to be brought before court
with the evidence they had. They are not ab le to even put one percent negligent on the
part of the insured driver. The case was still under investigation, they did not bother to
get the outcome of the investigations and then expect the court to assume that on the
basis that there were charges again st the surviving driver (Insured) driver, that
automatically translate into negligence.

10. In my view the plaintiff has failed to prove the required 1% negligent against the
insured driver. However, I am of the view that, the legal representatives of the plai ntiff
has not done enough to proof the case on behalf of the plaintiff, there is no evidence
before court upon which the court could find in favour of the plaintiff nor against the
plaintiff.


11. With respect to costs and having considered the lack of preparat ion from both the
attorneys and the counsel, I am of the view that both of them should not be entitled to
charging any fees against the plaintiff.

12. Under the circumstances the court makes the following order:

A) Absolution from the instance is granted.

B) Both At torney and Counsel are not allowed to charge the plaintiff any fee
relating to this hearing.



T C MAPHELELA
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION


APPEARANCES

FOR THE PLAINTIFF : ADV K MOKWENA
INSTRUCTED BY : D IRECTOR MAKHAFOLA INC

FOR THE DEFENDANT : NO APPEARANCE
INSTRUCTED BY :

DATE OF HEARING : 07 NOVEMBER 2024
DATE OF JUDGEMENT : 28 JANUARY 2025