2
NOKO J
Introduction
1. The plaintiff lodged a c laim for damages pursuant to injuries he suffered as a result
of a motor ve hicle collision on 4 May 2015 . The defendant failed to settle the claim and
the plaintiff sued out summons and claimed amount of R1,919,306.00 (One Million , Nine
Hundred and Nineteen Thousand , Three Hundred and Six Rands . The Road Accident Fund
(“defendant or RAF”) is defending the suit and is represented by the Office of the State
Attorney.
2. The plaintiff applied for the separation of merits and quantum in terms of Rule 33 of
the Uniform Rules of Court which was not resisted by the defendant and same was granted.
To this end the matter is p roceeding only on merits and quantum would be adjudicated
later.
3. The defendant stated that a notice to amend the plea was served late and dies to
deliver the amended pages has not expired. B y agreement between the parties the defen dant
delivered an amended plea which introduc ed a special plea of prescription .
Background .
4. The plaintiff was riding a bicycle along Malibongwe Road towards Cosmos City in
Randburg on 4 May 2015 at 17h00 . The plaintiff ’s bicycle was hit by a motor vehicle from
the back . The said motor vehicle did not stop after the collision hence the registration
details and identi ty of the driver are unknown to the plaintiff . The plaintiff suffered fracture
of the left arm and was hospitalised. Since the lis before me is on merits only not much
detail in respect of the nature and the damages will be provided .
3
5. The plaintiff personally lodged a claim directly with the RAF in 2017 with the
assistance of the defendant ’s officials . The mandate given to the RAF to facilitate the claim
was terminated in 2020 by the plaintiff’s current attorneys.
Special plea - Prescription.
6. The defendant contended that the RAF objected to the claim as other documents were
not furnished and the claim was therefore rejected. Further that as at the time of the
termination of mandate the plaintiff had not as yet submitted the outstanding documents.
To this end the claim is not compliant and should be dismissed with costs. The said
outstanding information includes hospital records detai ling the particulars of the patient ,
dates when the treatment was given and the particulars of the doctor . The ob jection ,
argument continued, should have been addressed ti meously and since the plaintiff failed
then the claim has prescribed.
7. The plaintiff’s counsel in retort referred to Sithebe1 where it was stated that the
rejection letter in itself is not sufficient for objection purpose and the prop er route would
be to raise a special plea within a period of 60 days. The practical application hereof is
obscure as the rejection would ordinarily be raised before the civil suit is launched .
8. The plaintiff contended that the information requested is provided for in the RAF 1
form which was duly completed by the medical practitioner who specifically indicated that
he completed the necessary forms based on the information obtained from the hospital
records and that he was not the treating medical practitioner. In any event the information
which was requested by the defendant is all in the medical records supplied . The plaintiff’s
counsel further referred to Busuku2 where the court held that the RAF need not adopt a
1 Sithebe v RAF (33165/17)[2021] ZAGPPHC 133.
2 RAF v Busuku (1013/19)[2020] ZASCA 158 (1 December 2020)
4
mechanical approach a nd where the hospital records have the details required then there is
substantial compliance and RAF must process to claim . It was also stated in Pretorius3. the
hospital records that were supplied together with RAF1 form placed sufficient information
before the defendant to establish the cause and nature of the plaintiff’s injuries and the
details of the accident.
9. Part 5 and 6 of the RAF 1 form ha ve listed documents required to be lodged for the
purposes of discharging an obligation to substantially comply with the statute. The only
document which the plaintiff could not lodge was the particulars of the insured vehicle.
Since this was a hit and run accident, the plaintiff would be excused from furnishing such
information. To this end the prescription which followed the letter of rejection by the
defendant under the circumstances be inapplicable.
10. In any event the defendant allowed and encouraged the claimants to lodge claims
directly with their offices and cannot therefore be heard to punish claimants and instead
should assist them to comply. Lest the invitation for claimants to lodge directly may be
construed as a trap. In the premises the plea of prescription is unsustainable and stand s to
be dismissed.
Parties’ Evidence .
11. The plaintiff testified that he was riding a bicycle on 4 May 2015 along Malibongwe
Road. The visibility was good , the weather was dry and the road surface was good. The
bicycle was hit from behind by a truck which did not stop. He was riding on the left side
of the road. He was then assisted by a lady who was a passersby . The driver could therefore
not be identified.
3 Pretorius v Road Accident Fund (353030/2018) ZAGPJHC 293 (26 August 2019)
5
12. Plaintiff stated under cross examination that he was riding on a road structured like
a freeway with four lanes, two lanes on each side going in opposite directions. Further t hat
there was no pedestrian pavement but there was a yellow lane on the side big enough for a
vehicle to drive through . The truck hit the bicycle ’s rear tyre which was then broken .
13. After the accident the plaintiff fell and was later assisted by another lady who was
passing by who called the ambulance . The plain tiff was taken through his section 19(f)
affidavit where i t was stated that he was assisted by a lady named Cynthia and in retort he
stated that its long time and he would not remember everyth ing. He recalls that the name
may have been mentioned to him by the ambulance staff.
Submissions .
14. The plaintiff’s counsel submitted that the insured driver had a duty to ensure that
there is sufficient sp ace to allow for the pedestrian s to walk and the cyclist s to ride at . That
the driver has failed to act reasonabl y under the circums tances and was therefore negligent.
15. Counsel further submitted that the plaintiff was reliable in his evidence which
remained unscathed through -out the cross -examination except only with regard to him
having forgotten the name of the lady who called the ambulance . The said evidence does
not tarnish the cogency and reliability of his evidence with regard to how the accident
occurred.
16. The defence on the other hand submitted that the plaintiff testified that he was riding
the bicycle on a freeway which is prohibited . In addition, the plaintiff appears to have been
negligent as he did not take reasonable measures to avoid the accident. To this end the
claim ought to be dismissed. Further that t he evidence of the plaintiff cannot be relied on
as he was not able to provide evidence consistent with what he stated in t he section 19(f)
6
affidavit. In his testimony he said he does not know the name of the person who assisted
him whilst the affidavit identified the helper . With the above background , it is argued, the
court should return an order dismissing the claim alternatively apportioning the damages
by at least 50% in accordance with the Apportionment of Damages Act 34 of 1956 .
Issue .
17. The issue for determination is whether the plaintiff has proved his claim by
demonstrating he has complied with the requirements set out in the RAF Act including
demonstrating that the collision arose as a result of the negligent driving of a motor vehicle
as envisaged in the RAF Act.
Legal principles and analysis .
18. In the adjudication process the Court is enjoined to consider the evidence presented,
and where inferences would be drawn and with a measure of common sense be able to
locate where probabilities are.4 It was further stated by Issacs and L eveson5 in relation to
cyclists that
“A driver is expected to keep a proper lookout for cyclists. It is difficult to ride a
bicycle in such a manner that it remains precisely and securely on a fixed course.
There is always a degree of sideways movement - first to the one side and then to
the other. If the cyclist is a young child and in addition there is strong wind
blowing, the possibility that a bicycle may deviate considerably more than
normally from its course is greater. For the aforementioned reasons a driver in such
a case is expected to give a cyclist timeous warning of his/her approach and in
his/her judgment will, in addition, also leave sufficient space between him/her and
4 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001(3 SA 1188 (SC A) at 1201 G -H.
5 Issacs and Leveson: The Law of Collision of South Africa 8th E, 2012 , nu Klopper) .
7
the bicycle in order to be able to overtake with reasonable safety.”6
19. Section 323 of the National Traffic Act 96 of 1993 read with the National Road
Traffic Regulations provides that no pedal cycle shall be permitted to be driven on a
freeway. Regulations further prohibits the riding of a pedal cycle without wearing a
helmet.7 There is no evidence to confirm that the plaintiff was wearing a helmet. This would
ordinarily justify a contribution to the damages suffered for which the court must exercise
discretion situated within the repository of the presiding judge though to be exercised
judiciously. It was stated in Smith8 that
‘I cannot exclude as a possibility even if the impact was low enough that the
injuries responsible for the Claimant’s residual disabilities were caused by a
contre -coup injury – an injury from which a helmet would not have protected the
Claimant. According ly, I make no finding of contributory negligence against the
Claimant.’
20. Just like any other road users there are obligations to observe rule s of the road and
respect other road user s. The plaintiff , as a cyclist was also enjoined to respect the rights
of other road users . The evidence presented is that there is enough space where the cyclist
was driving outside the yellow lane with a margin of safety with a size enough to
accommodate a nother vehicle . There is no evidence from the defendant or insured driver
controverting with the plaintiff’s testimony and his version appears to be credible despite
having forgotten the name of the lady who was first in the scene.
6 Id at 64.
7 Section 207,
8 Smith v Finch [2009]EWCH 53 QB .
8
21. Though the defendant pleaded in the alternative for contributory negligence there is
no shred of evidence supporting th e stance that the plaintiff was also to blame for the
accident.
22. It therefore follows that the fact that the claimant was not wearing a helmet does not
ipso facto imply that there was contributory negligence. It is common cause that the
plaint iff suffered a fracture of the arm. This part of the body would not have been saved by
the helmet and to this end the argument upon which the contributory negligence is
predicated is unsustainable.
Conclusion .
23. The question of the plaintiff’s failure to remember the name of the helper does not
tarnish the evidence in relation to the insured driver having negligently caused the collision.
There is further no persuasive evidence to support the submission by the defendant’s
counsel that there was negligence on the part of the plaintiff to warrant apportionment.
There is no cogent evidence to support the submission that indeed Mal ibongwe Road is a
freeway and absent any such evidence that defendant’s contention that t he claim is bound
to be dismissed as the plaintiff acted illegally by cycling on a freeway.
24. I am persuaded that the evidence of the plaintiff is unquestionable and that he has
discharged the onus to prove that th e defendant is liable in terms of the Road Accident
Fund Act.
Costs.
25. The determination of legal costs are ordinarily within the discretion of the court
which must be exercised judicially having regard to the relevant factors. It was held in
10
Appearances:
For the Plaintiff : K Masie
Instructed by : TM Nemasitoni Attorneys.
For the Respondent : T Tivane.
Instructed by : Office of the State Attorneys, Johannesburg.