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JUDGMENT
Mfenyana J
[1] The plaintiff, Mafahla John Raphephele (Raphephele) instituted
proceedings against the defendant, seeking damages for bodily injuries he
sustained , allegedly in a motor vehicle accident which occurred on 4 August
2019. It is alleged that at the time the accident occurred, the plaintiff was a
pedestrian . Although the Road Accident Fund (RAF) filed a notice of
intention to defend and a plea, it did not meaningfully defend the matter ,
and did not file any expert reports .
[2] The matter proceeded on both merits and quantum. At the commencement
of the proceedings, I made an order for the evidence of the plaintiff’s experts
to be given on affidavit in terms of rule 38(2 ), following a substantive
application by the plaintiff.
[3] In the particulars of claim dated 11 November 2020, it is asserted that on 5
August 2019 at approximately 18h30, the plaintiff was a pedestrian walking
along Njala Street in Tembisa, when he was hit by a motor vehicle with
unknown registration letters and numbers , driven by an unknown driver. It
is further stated that as a result of the accident, the plaintiff sustained
injuries to his right ankle, specifically a right lateral bimalleolar fracture and
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various soft tissue injuries. He received treatment as a result of the injuries
he sustained. He claims damages in the amount of R1 300 000.00 for
pecuniary and non -pecuniary loss.
[4] In the amended POC dated 26 November 2024 the plaintiff states that the
accident occurred on 4 August 2019. There was no objection to the
amendment and the amendment was consequently, effected.
[5] In respect of merits, the plaintiff filed two affidavit s in terms of section 19(f)
of the RAF Act.1 The first affidavit was deposed to on 30 October 2019. In it,
the plaintiff asserts that on 5 August 2019 he “was involved in a pedestrian
motor vehicle accident” while walking along Njala Street in Tembisa. He
further asserts that he was hit by a Toyota Avanza bearing unknown
registration numbers and letters, driven at the time, by an unknown driver.
According to the plaintiff he was walking on the pavement with his back
towards oncoming traffic, and the insured vehicle came from behind him and
veered out of the road onto the pavement and collided with him. The insured
driver thereafter fled the scene. He states that after the accident he was
taken to Tembisa hospital where he received treatment. It is further the
plaintiff’s assertion that one witness kno wn to him as Wonder witnessed the
accident.
1 Act 56 of 1996.
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[6] The second affidavit was deposed to on 25 May 2022. In this affidavit the
plaintiff states that on 4 August 2019 at approximately 18h30 he was
involved in a “pedestrian motor vehicle accident” while walking on the
pavement along Njala Street in Tembisa with his friend, Ngoako Thomas
Modiba (Modiba) , also known as Wonder. They were walking home from a
soccer match when the accident occurred. He goes further to state that the
4th of August 2019 was a Sunday, and that he first went home and went to
hospital the next day.
[7] The plaintiff’s affidavit further records that the plaintiff reported the
accident at the police station after he was discharged from hospital in
September 2019, and because it was already September, he erroneously
indicated the date of the accident as 5 September 2019 instead of August
2019. Further, as the accident occurred on 4 August and not 5 August, the
plaintiff further requests that th is should also be corrected. No explanation
is provided for this discrepancy, save to state that the accident happe ned
on 4 August 2019, and the plaintiff was admitted to hospital on 5 August
2019.
[8] In the accident report, it is recorded that the accident occurred on 5
September 2019.
[9] The hospital records indicate that the plaintiff was admitted to Tembisa
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hospital on 5 August 2019 at 19h55. At the top of the document, it is also
recorded - Time 15:10, presumably the time he was first attended to . The
time of accident is reflected as 9:09. It is further reflected that the plaintiff
arrived at the hospital in a wheelchair. In his testimony, he stated that he
was taken to hospital by ambulance. Notably, under section 2 of the clinical
records, it is recorded that the plaintiff twisted his foot .
[10] In a separate progress note, also forming part of the clinical note s recorded
on 06 August 2019 , it is indicated that “(the plaintiff) fell into a ditch and
busted his right ankle ”.
[11] At the hearing of the matter, the plaintiff testified. In his testimony, and in a
bid to clarify the discrepancies in his two affidavits, he reiterated that the
accident occurred on 4 August 2019. That is as far as he could take the
matter. Modiba also deposed to an affidavit, and was also called testify on
behalf of the plaintiff. He testified that he was walking home with the
plaintiff on 4 August 2019 coming from a soccer match. He was on the left -
hand side of John walking on Njala Street when a white Toyota Avanza
coming from a side street on their right lost control and collided with the
plaintif f on the sidewalk. The driver of the motor vehicle fled the scene.
When asked what happened to the plaintiff thereafter, and how he got home,
Modiba stated that he left him at his house. When he went to check on him
the next day, he could not find him. It turned out that he had been admitted
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to hospital.
[12] It is evident from the above that the applicant’s claim is not borne out by
evidence. To the contrary, independent documentation before this court
points to a different cause of the plaintiff’s injuries, namely that the plaintiff
had fallen into a ditch and twisted his ankle. No mention is made at all of a
motor vehicle accident in the clinical records.
[13] It appears that as time progressed, the story also developed. It took a
different turn. With each document filed, a new detail emerged. The upshot
of this is that, ultimately, the court is faced with multiple versions, all of
which are mutually exclusive, presumably emanating from the same
incident. This cannot be. Even if this court were to accept that the incident
occurred on 4 August 2019, and not on 5 August 2019, the cause of the
plaintiff’s injuries remains unexplained. T he plaintiff could not give an
explanation why the hospital and medical staff on more than one occasion
did not record that he had been in a motor vehicle accident . The plaintiff’s
evidence is not in sync with his case and vice versa. In all probability, he was
not a reliable witness. Even in court, his evidence was not reliable. As the
plaint iff in the matter, the details of his claim ought to be within his
knowledge. His evidence is also not corroborated by independent
information, save for his friend’s evidence who cannot be regarded as an
independent witness at any rate. In any event, Modiba could not shed any
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light on events that occurred after he had parted with the plaintiff. From his
evidence, the plaintiff managed to walk home. Looked at in conjunction with
the hospital records that the plaintiff only attended at hospital in the
afternoon of 5 August 2019, his account is improbable. It is improbable that
the plaintiff could simply walk himself home despite the injuries he
sustained, and only seek medic al attention in the late afternoon the next
day.
[14] There is a plethora of cases in this division and beyond , which spell out that,
a plaintiff will not be granted the relief they seek, merely on the basis that
the defendant has not mounted a defence or a meaningfully defended the
matter. This has always been the position , and it still prevails . In Nelson v
Marich2 the erstwhile Appellate Division observed that:
“The fact that there was no evidence to contradict the evidence given by the
plaintiff does not mean that the court is bound to accept the defendant’s
evidence… .” A plaintiff is still required to make out a proper case for the relief
it seeks.
[15] This court in T[…] P[…] R[…] obo P[…]M[…] M[…] v Road Accident Fund3,
per Davis J, where the defendant’s defence had been struck out, noted with
approval that ‘the plaintiff remains with the onus to prove its case on a
2 1952 (3) SA 140 (A).
3 Case No. 9117/2019 (18 April 2024).
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balance of probabilities ’. In the present case, the defendant remains very
much a part of the case, despite not having appointed experts. There can
therefore be no doubt that in circumstances like in the present case, this
trite principle of our law is all the more relevant.
[16] The plaintiff in this case failed to discharge the onus that rests on him, to
prove his case on a preponderance of probabilities. The plaintiff’s claim on
the merits thus, falls to be dismissed.
[17] Having found that the plaintiff has made no case on the merits, it is not
necessary to deal with the issue of quantum .
[18] In respect of costs, it is trite that costs are pre -eminently within the
discretion of the court. Although it is a general rule is that costs follow he
result , I am of the view that in the circumstances of this matter, it would
serve no purpose to grant a cost order that would likely not be satisfied.
[19] In the result, I make the following order:
a. The plaintiff’s claim is dismissed .
b. Each party shall pay its own costs.