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 NUMBER: 5986/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED : Yes
DATE: 25 April 2025
SIGNATURE:
In the matter between:
NHLAMULO WITNESS VUYEKA PLIANTIFF
AND
ROAD ACCIDENT FUND DEFENDANT
Delivered : 25 APRIL 2025
This judgment was handed down electronically by circulation to the parties'
legal representatives by e -mail. The date and time for hand down of the
judgment is deemed to be 24 April 2025 at 10:00 am.
Date heard: 27 January 2025
Coram: Mashifane AJ
JUDGMENT
MASHIFANE AJ
1. This is an application for default judgment against the defendant ( RAF) in
which the plaintiff seek and order on both merits and quantum.
2. On the 7th of July 2023 the pla intiff served combined the summons on the
defendant claiming loss of support due to death if her father arising out of motor
vehicle collision which occurred on the 12nd of July 2002 on Mookersi Road,
Limpopo Province. The defendant has failed to enter app earance to defend resulting
with this application.
3. As at the time of accident and death of her farther the plaintiff was still a minor
of about two years of age. It is not known to this court why the plaintiff's claim had to
wait until she reaches the age of majority for summons to be issued.
4. The plaintiff did not call any witnesses to testify on both merits and quantum
and proceedings were conducted in terms of Rule 38 (2) of the Uniform Rules.
Factual background
5. On 12 July 2002, at around 02H :00 midnight an accident occurred between
two motor vehicles and both drivers lost their lives on the scene. From the
documents filed on record it is common cause that the plaintiff's father ( deceased)
was driving a motor vehicle to wit Monza with registr ation number K[...] from Giyani
towards Polokwane. The other motor vehicle involved in the accident was a
Volkswagen City Golf with registration number K[...]2 driven by Moses Gumede
(insured driver) who was travelling from Polokwane direction toward Giyani. Fr om
the eyewitness statement Hasani Rodgers Khoza who was the passenger in the
insured motor vehicle and also, the owner thereof when the accident occurred, they
were travelling towards Giyani when he notice headlights of an approaching motor
vehicle coming towards them and he then realised that the oncoming motor vehicle
was travelling on their lane and before his driver could react the motor vehicles
collided head on, and both cars caught fire. His driver and the passenger
unfortunately burn inside the mot or vehicle and the insured driver was flown meters
away from the motor vehicles.
6. In his statement Khoza stated further that the deceased committed suicide
immediately after the accident by shooting himself. In a supplementary affidavit
made two years l ater he agree that he might have been mistaken when making the
statement that the deceased shot himself as he was in a shock and further that the
information he got while in the hospital to that effect was wrong.
Analysis
7. Application for default judgme nt involving matters of this nature is regulated
by Rule 31 (2) of the Uniform Rules which provide as follows:
"Whenever in an action the claim or, if there is more than one claim, any of
the claims is not for a debt or liquidated demand and a defendant is in default
of delivery of notice of intention to defend or of a plea, the plaintiff may set the
action down as provided in subrule (4) for default judgment and the court may,
after hearing evidence, grant judgment against the defendant or make such
order as to it seems meet".
8. The Plaintiff did not lead oral evidence and opted to proceed on the strength
of the papers before the court. The Counsel for the plaintiff indicated further that they
were unable to secure the attendance of the of the eyewitnes s without elaborating on
steps, the plaintiff has undertaken to trace and try to locate the witness. In support of
her claim the plaintiff relied on an affidavit by her attorney of record HS Makhubela.
On paragraph 6 of the affidavit the applicant states a s follows:
"In as far as the issue of merits is concerned, it is the Applicant's submission
that it is evident from the attached combined summons, corroborated by her
statement under oath on her affidavit dated 23rd day of September 2024 that
her father wa s involved in an accident as a driver on the 12th day of July 2002
wherein he sustained bodily injuries. It is further evident that the accident was
caused by the driver of the motor vehicle with registration letters and numbers
K[...]2 , hereinafter ref erred to as "the insured vehicle" when driven by one
Moses Gumede which collided with the motor vehicle with registration letters
and numbers K[...] driven by the applicant's deceased father and who died as
a result of the said accident. Further legal submissions shall be advanced on
the date of hearing, if need be.
See attached statutory Affidavit and the traffic accident assist reconstructed
by Jaco Venter in accordance with section 212 of the criminal procedure Act
51 of 1977 as ( "annexure NWV05 & NWV06" respectively )".
10. In her particulars of claim the plaintiff alleges that the accident was caused
solely by the negligence of the driving of insured driver vehicle. She alleges that the
insured driver was negligent in one or more of the followin g respects, that he failed to
keep a proper lookout; he failed to exercise proper control over the insured vehicle;
he drove too fast under the prevailing circumstances; he failed to apply brakes of the
insured vehicle at all, alternatively properly/ suffi ciently, alternatively timeously and
further alternatively he drove a vehicle of which the brakes were defective; he failed
to avoid the accident when, by the exercise of the reasonable care and skill, he could
and should have done so.
11. The report by Ja co Venter was not made under oath and not accompanied by
an affidavit deposed to by himself. It will therefore not serve as evidence before this
court. Even if the court was to take the report into account it will not take the case of
the plaintiff anywher e as it is based on inference drawn from insufficient information
he received from the investigation officer and documents in the document.
12. The Counsel for the plaintiff requested the court to consider the report to Mr
Jaco Venter and accept that there was a one percent negligence on the part of the
insured driver. For the court to arrive at that conclusion the document filed on record
must amount to evidence and this one fall short of that. It does not even comply with
the requirements of Section 212 o f the Criminal Procedure Act.
13. The maxim 'he who alleges must prove' finds an application on facts of this
case. The Court in Dorfling V Cortzee 1979(2) SA 632 (NC) remarked that where the
cause of action is delictual damages can in most cases only b e determined after
evidence has been led also in relation to the cause of action and whether there was
contributary negligence.
14. This matter involves collision between two motor vehicles and the plaintiff
prays that the court should find that the insur ed driver was at fault! In the absence of
a direct evidence then the court can only find in favor of the plaintiff after having
drawn an inference which can only be drawn from circumstantial evidence. In the
absence of such evidence no reasonable inference can be drawn. As a matter of fact,
the only eyewitness states that the accident happened at night, and he could only
see the headlight of the oncoming vehicle and before the driver could take an action
the collision occurred. It was admitted by the Counse l for the plaintiff that the point of
impact was on the insured driver's lane. I cannot, with due respect, arrive at the
conclusion that the insured driver was at fault or in any way contributed to the
accident either by omission or commission. In any even t the plaintiff pleaded that the
incident occurred as a result of the sole negligence insured driver.
LOGDEMENT PROCEDURE: SECTION 24 OF ROAD ACCIDENT FUND ACT
15. Section 24 (1) of the Road Accident Fund Act provides as follow:
"(1) A claim for compensation and accompanying medical report under
section 17 (1) sha ll-
(a) be set out in the prescribed form, which shall be completed in all its
particulars;
(b) be sent by registered post or delivered by hand to the Fund at its
principal branch or regional office, or to the agent who in terms of section 8
must handle the claim, at the agent's registered office or local branch office,
and the Fund or such agent shal l at the time of deliver by hand acknowledge
receipt thereof and the date of such receipt in writing."
16. The provisions of the act are mandatory that a claim should be lodged with
the defendant in a prescribed manner. I have perused the court file and t he
pleadings and I find no evidence that claim was lodged with the defendant. It is
expected of the plaintiff to satisfy the court that there was a statutory compliance
before instituting the proceedings and failure to do so will result in one of the
available consequence which is dismissal, absolution or refusal of the application.
17. In addition to subsection 1 subsection 6 provides as follows:
"No claim shall be enforceable by legal proceedings commenced by a
summons served on the Fund or an agent -
(a) before the expiry of a period of 120 days from the date on which the
claim was sent or delivered byand to the Fund or the agent as contemplated
in subsection (1); and
(b) before all requirements contemplated in section 19 (f) have been
complied with:
Provided that if the Fund or the agent repudiates in writing liability for the
Claim before the expiry of the said period, the third party may at any time after
such repudiation serve summons on the Fund or the agent, as the case may
be". This section requ ires of the plaintiff to prove first that subsection was
complied with, and I find that there is no proof of substantial compliance with
the Act.
18. As I have indicated in paragraph 7 above Rule 31 (2) grands the court
discretion after hearing evidence to grand judgement against the defaulting party or
make such an order as it deems fit. In addition to the above Section 16 of the Civil
Procedure Act 25 of 1965 permits the court to give judgment in any civil proceedings
on evidence of a single competent a nd credible witness. This was interpreted by the
Courts to mean that only credible evidence shall Be sufficient to enable the court to
give judgment.
19. I have already rejected the statement by Mr. Jaco Venter as it was found not
to be an affidavit and therefore not evidence. Mr. Khoza's evidence is that of a single
witness however.it is corroborated by the sketch plan which indicates that the point
of impact was on the lane of the insured driver.
20. The written heads of argument by the plaintiff's counsel are also of no
assistance to the Court. In paragraph three of his arguments the Counsel made the
following submission "The accident occurred when the insured driver encroached on
the lane of the deceased's motor vehicle and thereafter collided with it head on or
side swept it." This submission is, with respect, incorrect, there is no credible
evidence to support this submission.
Conclusion
21. In Gascoyne v Paul & Hunter 1917 TPD 171 at 173 , the Court said: "At the
close of the case of the plaintiff, therefore the question which arises for the
consideration of the Court is evidence upon which a reasonable man might find for
the plaintiff? The que stion for the Court would be: 'Is there such evidence upon
which the Court ought to give judgment in favour of the plaintiff."
22. In the light of the afore going this Court is not of the opinion that it will be fair
and justifiable to exercise its discre tion in favour of the plaintiff. I find no evidence
upon which I could so decide. I'm also not convinced that there was a substantive
compliance with Section 24 of the Act.
23.1 have considered the circumstance of this case and weight up my options. If
find that it will not serve the interest of justice to dismiss the action or grant
absolution from the instance. Issues in this matter can only be ventilated in a full trial
and I therefore order as follows:
Order
1. The application for default judgment is refused
2. There is no order to cost.
RS Mashifane AJ
Acting Judge of the High Court
Limpopo Division, POLOKWANE
APPEARANCE
For the Plaintiff:
Counsel : M.J Petja
Instructed by : H.S Makhubela Attorneys
For the Defendant: No appearance.