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:1422/2019
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JU DGES: YES/NO
(3) REVISED: YES/NO
SIGNATURE: DIAMON D AJ
DATE: 31 Jan 2025

In the matter between:

SEKHUKHUNE KENNEDY SEKWATI PLAINTIFF

And

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

DIAMOND A J:

[1] The Plaintiff instituted a claim for loss of support, in terms of section 17(1) of
Act 6 of 1996, in his personal capacity and in his capacity as a representative of a
minor child. The claim for loss of support and the loss of support claim followed up on
the passing of Tshepiso Alice Maja who died in a motor vehicle collision on 24
October 2017.

[2] By agreement between the parties, the adjudication of the quantum of the
claim was separated in terms of Rule 33(4), from the adjudication of the merits of the
claim and the trial proceeded on the 31 of JULY 2024.

[3] The fateful collision occurred around 17:00 that afternoon on the road
between Makureng and Mamaolo. This fact, as well as the following facts regarding
this collision, are common cause betwee n the parties:

• The Deceased, Tshepiso Alice Maja, was the driver of a motor vehicle, a
Mazda with registration number D[...] .

• The insured driver, one Mr. Tshisikule ("the Insured driver"), was the driver of
the insured vehicle, a Scania Marcopolo Bus with registration number B[...].

• On that particular afternoon, the insured driver was driving the passenger bus
from Makurung Village in the direction of Lebowakgomo. The insured driver had
stopped next to the road on the way to Lebowakgomo to allow some passengers to
leave the bus. Thereafter, he re -entered the road and started traveling towards
Lebowakgomo.

• A head -on collision occurred when the vehicle driven by the deceased, who
was traveling at that stage from Lebowakgomo in the direction of Makurung Village,
who veered into the right -hand lane towards Makurung.

• Visibility was good, and the collision occurred on a straight stretch of the road.

• The deceased died at the scene of the collision because of injuries sustained
in the collis ion.

[4] What this court was called upon to decide on, was articulated very accurately
by the Plaintiff in the Plaintiff’s Heads of Argument: -

“In casu, it is common cause that the accident occurred on the incorrect side
of the deceased. The inference i s that she was negligent in straying of her
path of travel and resulted in the head - on collision. The question to be
decided is in what way can it be said that the insured driver was negligent,
and his negligence contributed in the collision, and whether the insured driver
truly had no other alternative means of avoiding the accident as he said. The
Plaintiff in this regard needs only prove 1% contributory negligence on the
part of the insured driver.”

[5] In order to try to prove its case, the Plaintiff called only an expert witness, a
certain Mr Manamela of Manamela Private Investigation. In a nutshell, Mr Manamela
opined that the insured driver was negligent because he entered the road after he
offloaded certain passengers, and that it did so without observing oncoming traffic
and without proper care since, according to him, the bus driver saw the Mazda
coming from a distance.

[6] The Plaintiff did not call any further witnesses.

[7] The question now is what weight can be attached to the testimony of the
expert witness.1

[8] The manner in which a court should approach the testimony of an expert
witness has been laid down in the authorities over the years, and that manner
can very shortly be summarised as follows:2 -

• an expert opinion should include in its report a clear indication of all facts
which were prima facie established, either by himself or somebody else.


1 I will assume for the purposes of this judgement that the expert qualified himself to be an e xpert
witness in collision reconstruction.
2 See DT Zeffertt and AP Paizes, The South African Law of Evidence (Third edition, LexisNexis 2017).
P. 334 – 3524.
• Must express an opinion as to the question under discussion.

• Must give full logical and co herent reasons justifying the opinion from the
prima facie established facts.

• In the end, the court must form its own opinion with regard to the question
under, adjudication and must and should never (save in very exceptional, technical
and complicated circumstances) uncritically accept the opinion of an expert.

[9] In my view, no weight can be attached at all to the testimony of the expert
witness, for the following reasons: -

• The expert conceded, during cross -examination, and questions by the court
that his entire report is based on hearsay, for instance the police report on which he
relies heavily, was drafted well after the collision occurred.

• In some instances, the facts, which should at least display the character of
being prima facie , were e xtracted from double hearsay evidence.

• For the most crucial opinion of the expert, viz that the insured driver should
have observed the vehicle of the deceased, from quite a distance away, and take
evasive action.

• For this opinion, there is no fac tual basis, not even hearsay or double hearsay.
It is simply an opinion dropping out of thin air.

[10] In my view, no weight can be attached to the opinion of the expert.

[11] The Plaintiff closed its case after the expert witness.

[12] Hence, the case of the Plaintiff, at that stage of the proceedings, relied
entirely on the common cause facts enumerated paragraph 3 above.

[13] The Defendant thereafter applied for absol ution from the instance, on the
basis that, given the lacunae in the case for the Plaintiff, after the evidence of the
expert witness, the Plaintiff did not discharge the onus to prove any negligence, not
even 1%, by the insured driver.

[14] This court di smissed the application, and indicated that it will give reasons in
the final judgement for the dismissal of the application at that stage of the
proceedings.

[15] The Defendant thereafter proceeded to present the testimony of the insured
driver. The gist of the evidence by the insured driver was consistent with the
common cause facts. The crucial portion of the evidence by the insured driver is the
following: -

• That after re -entering the road, and already on his way to Lebowakgomo, he
was accelerating and busy changing gears to higher gears, when he all of the
sudden realised that the insured driver was swerving from his right -hand side, right
into his lane in which he was driving. He testified that he immediately applied the
brakes, came to a standsti ll, and a collision occurred between his vehicle and that of
the deceased.

• He testified that there was nothing more that he could do to avoid the collision:
At that stage he was still carrying 72 passengers whose safety he had to take into
account. He c ould not swerve to the left, because right next to the shoulder of the
road on the left side, the road reserve drops off sharply to the left, and if the bus with
the 72 passengers were to land on this road reserve, it would certainly have
overturned.

• It could not swerve to the right, since such an action would bring the bus right
into the lane of the oncoming traffic, creating a dangerous situation for oncoming
traffic.

• The only action that he could take was to bring the vehicle to a sudden
standstil l. This he did do.

[16] The Defendant then closed its case.

[17] The question now is how the above evidence should be evaluated.

[18] Before proceeding with the evaluation of the evidence after the case of the
Defendant I will proceed to give reasons for my order to dismiss the application for
absolution of the instance.

[19] In court, and in its written Heads of Argument, the Defe ndant argued that
there was no evidence in the case of the Plaintiff from which an inference of
negligence could be drawn against the insured driver, and that this court would not
be entitled to receive evidence of the Defendant curing the lacunae in the e vidence.
Should the court do so, so the Defendant argues, it would mean that the court would
burden the Defendant with an onus to disprove liability.

[20] I disagree with the Defendant. In my view the approach of the Defendant
conflates two issues. Firstl y a party (and sometimes both parties) to proceedings
may have an onus to prove its case. Both parties to proceedings, on the other hand,
have a duty to adduce evidence.

[21] If a party has a duty to adduce evidence, that does not necessarily mean that
such a party carries an onus in the classical sense of the word.3

[22] Gordon Lloyd Page & Associates v Rivera and another4 Harms JA states the
following:

“The test for absolution to be applied by a trial court at the end of a Plaintiff's
case was formul ated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA
403 (A) at 409G -H in these terms:


3 See, for a thorough discussion Zeffert ibid P. 137 -140.
4 2001 (1) SA 88 (SCA) P2.
“(W)hen absolution from the instance is sought at the close of Plaintiff's case,
the test to be applied is not whether the evidence led by Plaintiff establishes
what would finally be required to be established, but whether there is
evidence upon which a Court, applying its mind reasonably to such evidence,
could or might (not should, nor ought to) find for the Plaintiff. (Gascoyne v
Paul and Hunter 1917 TPD 170 at 17 3; Ruto Flour Mills (Pty) Ltd v Adelson (2)
1958 (4) SA 307 (T).)'

This implies that a Plaintiff has to make out a prima facie case - in the sense
that there is evidence relating to all the elements of the claim - to survive
absolution because without suc h evidence no court could find for the Plaintiff
(Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at
37G-38A; Schmidt Bewysreg 4th ed at 91 -2). As far as inferences from the
evidence are concerned, the inference relied upon by the Plai ntiff must be a
reasonable one, not the only reasonable one (Schmidt at 93). The test has
from time to time been formulated in different terms, especially it has been
said that the court must consider whether there is "evidence upon which a
reasonable man might find for the Plaintiff" (Gascoyne (loc cit)) - a test which
had its origin in jury trials when the "reasonable man" was a reasonable
member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the
issue. The court ought not to be concern ed with what someone else might
think; it should rather be concerned with its own judgment and not that of
another "reasonable" person or court. Having said this, absolution at the end
of a Plaintiff's case, in the ordinary course of events, will neverthel ess be
granted sparingly but when the occasion arises, a court should order it in the
interests of justice."

[23] In my view, this is exactly the test which should be apprised in this matter.
Since the Plaintiff would only rely on 1% negligence, at least one of the possible
inferences in favour of the Plaintiff could be that the insured driver failed to take the
necessary evasive action, and for that reason was at le ast 1% negligent despite the
fact that the Plaintiff was overwhelmingly negligent.

[24] Hence given the fact that virtually all the elements as to how the collision
occurred were common cause, there was sufficient evidence on which reasonable
court might - and not necessarily must find in favour of the Plaintiff.

[25] In the context of this case, the best and probably the only person that could
testify as to whether it was possible to take evasive action within the context was the
insured driver.

[26] For that reason this court refused absolution of the instance to have the
benefit of full evidence of the insured before court.

[27] In doing so the court did not shift the balance of proof to the Defendant.

[28] I now turn to the evidence of the i nsured driver.

[29] In my view two aspects of the evidence of the insured driver are important:

• Firstly, his explanation as to when and where he observed the vehicle of the
deceased in front of him; and secondly

• Secondly, whether he was in a positi on to take evasive action, and by so
doing they have avoided the accident from occurring.

[30] In my view, the explanation given by the insured driver as to when he
observed the vehicle of the deceased in front of him is completely unconvincing. He
was as ked in court to give an indication as to the distance at which he first observed
the sudden swerve of the deceased vehicle into his lane of travel. He pointed from
the witness box to the edge of the bench of the legal representatives closest to him,
a dist ance of plus - 2 m.

[31] I find it utterly unconvincing that he could observe a sudden movement of the
deceased vehicle, at a 2 meter distance, while still accelerating and changing gears
to higher gears, and then apply brakes to bring his bus to a stands till. All of that
within the space of 2 meters. That evidence is highly improbable.

[32] In my view, the most reasonable inference to be drawn is that the insured
driver failed to keep a proper lookout, since he could not give a reasonable
explanation ho w the deceased vehicle appeared in front of him.

[33] That is of course not the end of the enquiry. The next question to be
considered is whether the failure to keep a proper lookout is causally linked to the
occurrence of the collision.

[34] To put it t he other way round: had any reasonable person kept a proper
lookout, would then it then have been possible for the insured driver to have avoid
the collision by taking evasive action.

[35] The insured driver testified, and, in my view, there is nothing to suggest that
the evidence of the insured driver should be rejected, nor is there any evidence to
the contrary, that it could not take evasive action. It is quite reasonable that the
insured driver could not swerve the bus to the left of the road, nor into the right lane
of the road, against the backdrop of the explanations given above.

[36] The Plaintiff presented absolutely no evidence to the court which could assist
the court to come to a conclusion such as the width of the road, the width of the
round measured from shoulder to shoulder of the road, the total width of the road
reserve, the nature thereof, the physical condition of the vehicles after the accident
from which inferences can be drawn, breaking skid marks on the tar, etc, etc.

[37] It is also puzzling that the collision occurred at 17:00, which must be a busy
time of the day, with a bus full of passengers, without any passenger or witness
having observed the collision.

[38] In my view, therefore the Plaintiff did not discharge the onus on him to prove
its case. There is just a complete paucity of evidence that would substantiate an
inference that the insured driver was at least 1% negligent.

[39] For all of the above reasons I am of the view that the claim should be
dismissed.

I consequently make the following order:

The claim of the Plaintiff is dismissed with costs.


DIAMOND AJ
Acting Judge of the High Court
Limpopo Division,
Polokwane


APPEARANCES:

HEARD ON : 31 JULY 2024.

JUDGMENT DELIVERED ON : 31 January 2025
September 202. This judgment was handed
down electronically by circulation to the
parties’ representatives by email. The date
and time for hand -down of the judgment is
deemed to be 31 January 2025 at

FOR THE PLAINTIFF : M Mamarokane
INSTRUCTED BY : Marokane Attorneys, Pretoria
EMAIL:masegela@marokaneattorney.co.za
Ref: R/MVA/SEK20.

FOR THE RESPONDENT : Adv S R Sibara
INSTRUCTED BY : State Attorney, Polokwane
Email: kholofelos@raf.co.za
moshabanem@r af.co.za
ReF: Sekwati SK/z01 PLK/RAF 519/2021/SK