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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable / Not reportable
Case no: 5896/2023
In the matter between :
L[…] B[…] T[…] OBO MINORS PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Neutral citation: L[…] B[…] T[…] obo Minors v The Road Accident
Fund (5896/2023)
Coram: Mpama AJ
Heard: 13 November 2024
Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email and released to SAFLII. The date and
time for hand- down is deemed to be 22 January 2025 on 14H30.
Summary: claim for loss of support arising out of a motor vehicle accident –
defendant disputing whether deceased was a passenger in the vehicle –
deceased found to have been a passenger and not driver – liability for
compensation confirmed.
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ORDER
1 The deceased was the passenger in the insured vehicle.
2 The defendant is liable to compensate the plaintiff for any proven
damages arising out of the deceased’s accident on 06 July 2019.
3 Quantum is postponed sine die.
4 The costs shall be costs in the cause.
JUDGMENT
MPAMA AJ
[1] This is an action for loss of support arising from a motor vehicle collision
which occurred on 6 July 2019 at Tosi Street, Phuthaditjhaba, Free State,
involving a Polo motor vehicle with registration number JYS […]. The claim
follows the death of the plaintiff’s husband, M r D[..] T[…] N[…] (the deceased).
[2] The plaintiff lodged a claim against the defendant in her personal capacity
as the wife of the deceased and in her representative capacity as the mother of
the minor children, namely , K[…] T[…] N[…]1 and K […] T[…] N[…]2, born on
[…] A[…] 2008.
[3] The matter came before me on 12 November 2024 . At the time , the
defendant was duly represented and the matter was, by agreement , postponed
to the following day in order to afford the parties one last opportunity to settle the
matter. On behalf of the defendant , it was placed on record that the defendant
will not be in attendance on the next day and the matter , if not settled, will
proceed by way of default.
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[4] Indeed, as intimated by the defendant, there was no appearance by the
defendant on 13 November 2024. The pl aintiff informed the court that the only
issue for determi nation was whether the deceased was the driver of the vehicle
in order to establish the defendant ’s liability and requested the court to postpone
quantum sine die.
[5] The plaintiff applied for some affidavits to be admitted in terms of rule
38(2) of the Uniform Rules of Court. I acceded to the request and the following
affidavits were admitted: statements of Fusi Mofokeng and Zwelebanzi Solani
marked exhibits ‘ A’ and ‘ B’ respectively. Later on, an accident report (the report)
was handed in and marked Exhibit ‘ C’. No further evidence was presented. It
was argued on behalf of the plaintiff that the two statements indicate, without an
inch of doubt , that the deceased was a passenger in the vehicle. It was further
argued that in the absence of evidence to the contrary, the court should find that
the deceased was a passenger in the vehicle and that the defendant is liable to compensate the plaintiff for her loss.
[6] It is trite that the plaintiff bears an onus of proof on a balance of
probabilities. I am called to adjudicate on whether the deceased was a
passenger or a driver of the vehicle.
[7] The statement of Mr Fusi Mofokeng, admitted as an Exhibit ‘A’ state d
that he was the driver of the insured vehicle when the accident took place. The
statement went further to describe how the accident took place. This is
corroborated by the evidence of Mr Zwelebanzi Solani , admitted as Exhibit ‘B’.
No evidence to the contrary was presented.
[8] Moreover , the report depict ed that Mr Fusi Mokoena was the driver of the
vehicle. It is so that where the name of the driver appeared on the report, the
name of the deceased has been noted and then crossed . In the same space, the
name of Mr Fusi Mofokeng has been appended. This appears to be the basis for
the defendant’s plea that the deceased was the driver. Howev er, on the same
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report under the subheading ‘PARTICULARS OF KILLED OR INJURED
PASSENGERS AND PEDESTRIANS’ the deceased has been listed as having
been a passenger in the vehicle.
[9] Further examination of the report revealed that the report has been
altered on more than four instances , including where the name of the driver
appear ed as explained above. My observation is that the report itself is a
clumsy, unskillful and badly written document . Some information is lacking and
on certain instances, where a selection ought to have been made, no such
selection was made.
[10] In the past , the Appellate Division in S v Xaba1 expressed itself as
follows : ‘. . . that the police statements are, as a matter of common experience,
frequently not taken with the degree of care, accuracy and completeness which
is desirable.’2 I find these sentiments expressed by the Appellate Division,
almost 32 years ago, still applicable even today. Little or nothing has improved
on how the police obtain statements or record information for the purposes of
further investigations. This report is no exception. More is still needed to improve
record taking by police officers.
[11] I am satisfied that despite the shortcomings in the report, the
uncontroverted evidence establishes on a balance of probabilities that the
deceased was a passenger in the insured vehicle. The defendant’s plea that the
deceased was the driver is not supported by the evidence and therefore cannot
be sustained.
Order
[12] In the circumstances , I make the following findings:
1 S v Xaba 1983(3) SA 717(A).
2 Ibid at 7308- C.
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1 The deceased was the passenger in the insured vehicle.
2 The defendant is liable to compensate the plaintiff for any proven
damages arising out of the deceased’s accident on 06 July 2019.
3 Quantum is postponed sine die.
4 The costs shall be costs in the cause.
L. MPAMA, AJ
Appearances
For the plaintiff : Adv N. A. Feza
Instructed by: Messrs Nangamso Meintjies Inc.
c/o Messrs Thebe Attorneys
Westdene
Bloemfontein
For the defendant : No appearance