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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024 -16366
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE : 11 March 202 5
SIGNATURE
In the matter between:
MADITSE MARTINA MOTLADILE Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
Mkhabela AJ
Introduction
[1] This is a delictual action in terms of which the Plaintiff alleged that the
defendant is liable for damages she has suffered as a result of the negligent driving
caused solely by the insured wrongful driver. At the commencement of the trial , I
made an order that the issue of liability is separated from quantum as envisaged by
rule 33(4) of the Uniform Rules of Court.
[2] The gist of the Plaintiff ‘s claim is premised on the allegation that on 14 April
2020 at or near the N12 East Road, Johannesburg , the Plaintiff was driving a moto r
vehicle with registration number B[...] when she lost control.
[3] The Plaintiff alleges that she lost control of the vehicle whilst she was trying to
avoid a collision with another motor vehicle which remains unknown to the Plaintiff .
Consequently, the Defendant became liable to the Plaintiff for the injuries that the
Plaintiff sustained pursuant to the Road Accident Fund Act1.
[4] The Plaintiff pleaded in her particulars of claim that t he cause of the incident
was attributable to and caused solely by the fault and /or negligence of the
unidentified insured driver of the unknown or unidentified driver who was negligent on
various grounds pleaded by the Plaintiff , inter alia, the following:
4.1 The unknown insured driver caused the Plaintiff to lose control and
consequently the Plaintiff ’s motor vehicle rolled several times while trying to
avoid a collision with the i nsured driver .
4.2 As a result of the unknown insured driver ’s fault or negligence in causing the
collision, the Plaintiff alleges that she sustained serious bodily injuries
including a head injury and a skull fracture.
4.3 The insured driver had overtaken the Plaintiff and came to a sudden stop in
front of the Plaintiff ’s motor vehicle causing the Plaintiff to swerve off the road
in an attempt to avoid colliding with the insured driver ’s motor vehicle.
[5] Counsel for the Plaintiff, Mr Mavunda, submitted in his opening statement that
“the Plaintiff was driving her motor vehicle and the unknown insured driver s ’ motor
vehicle came in front of the Plaintiff and suddenly stopped in front of the Plaintiff
vehicle and the Plaintiff tried to avoid the accident, but lost control and she was not
alone”.
[6] Mr Mavunda then called the Plaintiff who testified as a first witness in support of
her case. Her evidence could be summarised as follows:
1 Section 17 (1) of the Road Accident Fund Act 56 of 1996.
6.1 she was 38 years at the time of the incident.
6.2 she was driving on the left-hand side of the road and the traffic had stopped
and the other insured driver who was driving on the right-hand side crossed
into her lane which was on the left-hand side and came to drive in front of her.
6.3. The other driver realised that on the left-hand side the traffic had come to a
halt and the insured driver did what is called sudden stop in front of her.
6.4. She attempted to swerve towards the left -hand side. It was at that time when
her vehicle or that she lost control and her vehicle moved out of the road. She
fainted, lost consciousness and regained consciousness seven days later in
hospital.
[7] After the Plaintiff had given the above evidence, the court asked few questions.
One of the questions was “whether the other motor vehicle in question had
attempted to overtake whilst the traffic had come to standstill ?”
[8] In response , the Plaintiff then changed her version and stated that the other
driver was actually not overtaking but was changing lane s, in other words “moving
from where he was from the right-hand side into the left -hand side where she was”.
[9] The Plaintiff in her further response to the court ‘s questions repeated her
evidence in chief and stated as follows:
“Because I was driving on the left – hand lane and as he came and made a
sudden stop in front of me, I then swerved to avoid an accident on the left
hand – side of the road in the process I lost control”.
[10] The Plaintiff stated further that she was driving at approximately 67 km per hour
and that she applied her brakes when the other driver made a sudden stop in front of
her car. She estimated that her speed may have been reduced to 60 km per hour
when she lost control of her motor vehicle.
[11] The next witness that testified in support of the Plaintiff ’s case was Const able
Molefe (Molefe). His evidence could be summarised as follows:
11.1 Constable Molefe and the Plaintiff were travelling together on the N12 road
towards Lenasia.
11.2 Whilst travelling, a motor vehicle came and overtook the Plaintiff and the
insured driver made a sudden stop in front of the Plaintiff ’s vehicle .
11.3 The Plaintiff then applied her brakes in an attempt to avoid the collision and
lost control of her motor vehicle and it rolled over.
[12] However in response to the court ‘s question s as to whether the insured driver
had attempted to overtake the Plaintiff ’s motor vehicle and suddenly came to an
abrupt st op, Molefe changed his version.
[13] Molefe s’ new version was that “the motor vehicle driven by the insured driver
“did not stop completely but reduced his speed”.
[14] Furthermore, Molefe testified that “the insured driver had managed to execute
and complete d the overtaking process and the insured driver s’ motor vehicle ended
up being in front of the Plaintiff ’s motor vehicle”.
[15] Moreover, Molefe told the court that “the Plaintiff ’s car ended up being behind
the insured driver ’s motor vehicle after the insured driver had completed the
overtaking process”
The law
[16] It is trite that the Plaintiff bears the onus to prove both liability and the quantum
of the claim. In order to establish liability, the evidence must demonstrate that it was
the negligence or the wrongful act on the part of the insured driver that caused or
contributed to the collision which resulted in the death or injury of the Plaintiff .2
[17] In terms of section 17(1) of the Act, the defendant is obliged to compensate a
person in the position of the Plaintiff for loss or damage suffered because of bodily
injury caused or arising from the driving of a motor vehicle. The defendant’s liability is
2 Macdonald and others v Road Accident Fund [2012] Jol 29313 SCA at para 14 .
however conditional upon the injury having resulted from the negligence or wrongful
act of the insured driver3.
[18] In the case of National Employers General Insurance Co LTD v Jagers4, the
court held that:
“…in any civil case, as in any criminal case, the onus can ordinarily only be
discharged by adducing credible evidence to support the case of the party on
whom the onus rests.” 5
[19] Similarly, Schwikkard PJ (et al), Principles of Evidence, the learned author
observed that in civil cases the burden of proof is discharged as a matter of
probability .6
[20] In the case of S elamolele v Makhado7 the court stated as follows:
“It is common caused that the plaintiff bears the overall onus of proof … It may
be that the defendant has some duty of adducing evidence in support of the
latter version but the onus of proof in the overall case never shifts, it remains
on the plainti ff8.”
[21] The Supreme Court of Appeal in Grove v Road Accident Fund9 restated the
same principle quite eloquently and I can do no better to illustrate this trite principle in
that case other than quoting the relevant passage which reads:
“there can be no question of liability if it is not proved that the wrongdoer
caused the damage of the person suffering from harm. Whether an act can be
identified as a cause, depends on a conclusion drawn from available facts and
3 MP Olivier, Social Security Core elements, LAWSA Lexisnexis Vol 13(3) 2nd ed, July 2013 at para
163.
4 1984 (4) SA 437 (ECD)
5 Ibid at p 440D .
6 4th Ed, 2016 Chapter 32 page 628 .
7 1988 (2) SA 372 (V).
8 Ibid at p 37 4.
9 Grove v Road Accident Fund [2011] ZA SCA 55 (31 March 2011)
relevant probabilities. The important question is how one should determine a
causal nexus, namely whether one follows from another ”10
The Issue
[22] The issue that is before me for adjudication is the determination of liability.
Putting it differently, the question is whether the accident was caused by the
negligent driving of the unknown insured driver?
Analys is
[23] It is evident that there are many versions given by the Plaintiff and her witness
as to how the incident happened. The first version is that the insured driver came
from the right hand -side to the left hand -side on which the Plaintiff ’s motor vehicle
was travelling forcing the Plaintiff to swerve her car and thereby losing control of her
motor vehicle.
[24] The second version is that the insured driver overtook the Plaintiff ’s motor
vehicle and made a sudden stop in front of the Plaintiff ’s motor vehicle causing her to
swerve and ultimately losing control of the motor vehicle.
[25] The third version is that the insured driver did not overtake the Plaintiff but
chang ed lanes and came on the Plaintiff ’s path forcing her to swerve to the left hand
– side of the road and ended up losing control of her motor vehicle.
[26] The sixth version was given by Molefe who was a passenger in the same
vehicle driven by the Plaintiff and it is to the effect the insured driver successfully
managed to overtake the Plaintiff ’s motor vehicle and reduced his speed but did not
come to a sudden stop in front of the Plaintiff.
[27] Accordingly, there are now differ ent versions given by the Plaintiff and Molefe
pertaining to the same collision or the incident . This is without the other concomitant
version that the traffic had come to stop when the insured driver mov ed from his lane
into the plaintiff ’s lane .
10 Ibid at para 7 .
[28] It follows therefore that in the light of the material contradictory versions given
by the Plaintiff and Molefe, it is difficult, if not impossible to conclude that the Plaintiff
has managed to discharge her onus to prove liability on a balance of probabil ities.
The burden of proof that rests on the Plaintiff does not shift to the defendant
notwithstanding that the defendant has some duty to adduce evidence and to rebut
the Plaintiff’s evidence11.
[29] It is also trite that it is impermissible for a litigant to plead a particular case and
seek to establish a different case at the trial12. This is precisely what happened in this
case given the contradictory versions given by the Plaintiff. The court is not in a
position to know what caused the incident.
[30] Accordingly, there is no evidence before this court that the insured driver ’s
conduct on the day in question was negligent and further there is no evidence that
the Plaintiff ’s injuries were caused by the insured driver ’s negligent conduct at all.
[31] The Plaintiff ’s version that the traffic had come to stand still on the day in
question before the insured driver came to her left lane and further that she was
driving at approximately 67 km per hour is incongruent with the nature of the injuries
suffered13.
[32] Lastly, it is trite that the obligation of the defendant to compensate the Plaintiff for
the alleged damages for bodily injury must arise from the negligent driving by the
insured driver14.
[33] Adopting a practical common -sense approach without the benefit of expert
evidence, it is improbable on the totality of the evidence that the Plaintiff could have
suffered such severe injuries even if her many contradictory version s were to be
accepted.
11 Salamolele v Makhado 1988 (2) SA 372 V, at para 374
12 Molusi v Voges NO 2016 (3) 370 (CC).
13 It was alleged that the plaintiff suffered a skull fracture and lost consciousness and regained her
consciousness seven days later in hospital.
14 Grove , supra.
[34] On the version given by Molefe, the insured driver had not made a sudden stop
as testified by the Plaintiff. Further, the insured driver had managed to complete the
overtaking process and the Plaintiff ’s motor vehicle ended up being in front of the
insured drivers’ motor vehicle.
[35] Based on this version given by Molefe and once the insured driver was now in
front of the Plaintiff ’s motor vehicle, any subsequent loss of control of the motor
vehicle by the Plaintiff could not be attributed to the conduct made by the insured
driver.
[36] One could accept that the Plaintiff was involved in a n accident given her
injuries. However, from her testimony concomitant with the testimony of Molefe, I am
unable to conclude that the Plaintiff had managed to discharge her onus on the
balance of probabilities of proving that the incident happened as a direct result of the
insured driver’s negligent co nduct.
[37] For all these reasons, I am constrained as a matter of logic and common sense
to conclude that the evidence adduced by the Plaintiff and Molefe does not establish
any negligent conduct on the part of the insured driver. Accordingly, liability on the
part of the defendant does not arise.
Orde r
[38] In the circumstances, the Plaintiff ’s case is dismissed and since there is no
appearance for the defendant, there is no order as to costs.
MKHABELA AJ
JUDGE (ACTING) OF THE HIGH COURT ,
PRETORIA
Appearance s
For the App ellants: Adv MC Mavunda
Instructed by : PP Petshana Attorneys
For the Respondent : No appearance for the Respondent
Date of hearing : 8 November 2024
Date of judgment : 11 March 2025