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
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case No: 293/2021
In the matter between:
LEBOGANG MORWE PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Morwe v The Road Accident Fund (293/2021) [25 February
2025 ]
Coram: Stanton J
Heard: 25 February 2025
Delivered: 07 March 2025
Summary: Claim for damages – whether plaintiff proved that the accident
was caused by the sole negligence of the insured driver – defendant failed to present
evidence to the contrary – plaintiff’s version undisputed – section 19(f) of the Road
Accident Fund 56 of 1996 – defendant liable to pay 100% of the plaintiff’s proven or
agreed damages.
ORDER
____ _______________________________________________________________
1. The merits and quantum are separated in terms of Rule 33(4) of the Uniform
Rules of Court:
2. The issue of quantum is postponed sine die;
3. The collision under consideration was caused solely by the negligence of the
insured driver;
4. The defendant is liable for 100% of the plaintiff ’s agreed upon or proven
damages;
5. The defendant shall pay the costs of this hearing on a party and party scale,
scale B .
JUDGMENT
_____ ______________________________________________________________
Stanton J:
Introduction:
[1] The plaintiff instituted action agai nst the Road Accident Fund (“the Fund”) for
damages he suffered as a result of injuries sustained in a motor vehicle
accident that happened on 24 November 2019 (“the collision”) .
[2] The parties , at the outset of the hearing , applied for a separation between
the issues of merits and quantum in terms of Rule 33(4) of the Uniform Rules
of Court. This application was granted, and the trial proceeded on the merits.
[3] The parties agreed that the following issues were common cause and did not
require adjudication:
3.1 On 24 November 2019 , a motor vehicle with registration number
C[...] 1[...] N[...] , driven by the plaintiff, collided with a motor vehicle
with registration number H[...] 1[...] F[...] and a trailer with registration
number F[...] 8[...] F[...] (“the trailer”) , driven by the insured driver, Mr
T Tshwabalala (“the insured driver”) ;
3.2 The collision occurred on the main road at or near Seven Miles,
Kuruman, Northern Cape Province ; and
3.3 A trailer is a motor vehicle as defined in section 1 of the Road
Accident Fund Act 56 of 1996 (”the Act”) .
[4] In his particulars of claim, the p laintiff allege s that the collision was caused
by the sole negligence of the insured driver in one or more of th e following
respects:
4.1 He failed to keep a proper look out;
4.2 He dr ove his motor vehicle at an excessively high speed under the
prevailing weather circumstances;
4.3 He failed to avoid the collision when by the exercise of reasonable
care and skill he could, and should have, been able to do;
4.4 He failed to apply the brakes of the motor vehicle sufficiently and/or
timeously and/or at all, alternatively, he drove his motor vehicle
whilst the braking system thereof was in a defective condition;
4.5 He failed to exercise proper control over the motor vehicle that he
was driving;
4.6 He failed to take proper cognisance of the prevailing conditions he
was driving under ; and therefore failed to exercise reasonable care
in the operation of his motor vehicle; and
4.7 He failed to take cognisance of the rights of the other road users,
more specifically that of the plaintiff.
[5] In its plea , the Fund , as an introductory remark, denies, alternatively , avers
that it has no knowledge that the insured driver was the sole cause of the
collision as alleged. The Fund’s alternative and conditional plea s are that:-
5.1 The insured driver was not negligen t as alleged or otherwise ; or
5.2 The collision was caused by the sole negligence of the plaintiff in
that:
5.2.1 he dr ove at an excessive speed in the prevailing
circumstances;
5.2.2 he failed to exercise proper control over the motor vehicle
that he was driving;
5.2.3 he failed to apply the brakes of the motor vehicle timeously
and/or at all;
5.2.4 he failed to avoid the collision when , with the exercise of
reasonable care he could, and should have, done so; and
5.2.5 any other ground(s) that may be proven during the course of
the trial; or
5.3 In the event that the Court finds that the insured driver was
negligent, that the plaintiff’s damages, if proven, should be
apportioned in accordance with his degree of negligence vis-à-vis
that of the insured driver in terms of the Apportionment of Damages
Act 34 of 1956.
[6] The question for determination is whether the collision was caused by
negligence on the part of the insured driver ; and, if so, whether the plaintiff’s
negligence was a contributory cause.
Evidence:
[7] The plaintiff was the only witness who testified in the trial. When examined in
chief, he testified that he attended a funeral on 23 November 2019. He left
Bathlaros Village in the early hours of the following morning to return to work
in Kuruman, but that he first wanted to visit his parents in Pampi erstad. The
road he travelled on was a straight tarmac road. According to his evidence ,
the collision occurred before Mothibistad at Seven Miles when the insured
driver, who was travelling from the opposite direction suddenly turned right
into an informal road; and the pla intiff collided with the trailer. The plaintiff
attempted to apply his breaks to avoid the collision, but it was too late ; and
he also tried, unsuccessfully, to swerve to the right as the trailer was already
on the road in front of him . He lost consciousness immediately after the
collision.
[8] Mr Mogano, on behalf of the Fund , admitted the contents of the accident
report, save for the description of how the accident occurred. The plaintiff
testified that his evidence on how the collision occurred is identical to the
information on the sketch plan and the accident report.
[9] When cross -examin ed, the plaintiff ’s version was not disputed. He was,
however, questioned about the veracity of his section 19(f) affidavit. The
plaintiff conceded that he could not recall that he deposed to , or signed, the
section 19(f) affidavit.
[10] When questioned by the Court, the plaintiff confirmed that he wa s driving
between 60km and 80km on the road with a speed limit of 80km/h; and that
he could not see whether the insured driver ’s motor vehicle had indicated the
intention to turn right.
[11] The Fund closed its case without calling any witnesses.
[12] Mr Mogano argued that the plaintiff’s claim should be dismissed for two
reasons. In the first instance, he submitted that the Fund is not liable to pay
the plaintiff as the plaintiff could not recall the content of the section 19(f)
affidavit. In the second instance, he contended that the plaintiff’s evidence is
contrary to his particulars of claim in that it did not include the evidence that
the insured driver had made a right turn in front of the plaintiff , and as such,
the evidence should be disregarded.
Applicable law:
Onus:
[13] In order to succeed , the plaintiff must establish that the collision had
occurred as a result of the causal negligence on the part of the insured
driver.
[14] It is the duty of every road user to keep a proper lookout. This duty involves
not only the physical act of looking, but also a reasonably prudent reaction to
what might be observed .
[15] It is clear from the evidence of the plaintiff, read with the description of the
collision on the accident report, that the collision occurred when the insured
driver executed a right turn and thereby cut directly across the path of travel
of the p laintiff who was travelling straight at the time. It has been stated in a
long line of cases that to turn across the line of oncoming or following traffic,
is an inherently dangerous manoeuvre and that there is a stringent duty
upon a driver who intends executing such a manoeuvre to do so by properly
satisfying himself that it is safe and choosing the opportune moment to do
so.1
1 AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (AD) a t 52E.
Contr ibutory negligence:
[16] The onus of establishing contributory causal negligence on the part of the
plaintiff rests with the defendant.2 The Fund should accordingly adduce or
elicit sufficient evidence to support a finding of negligence on the part of the
plaintiff as well as a causal connection to the collision if it is to succeed with
establishing contributory negligence.
Section 19(f) of the Act:
[17] Section 19(f) of the Act provides that the Fund or an agent shall not be
oblig ed to compensate any person in terms of section 17 for any loss or
damage if the third party refuses or fails —
17.1 to submit to the Fund or such agent, together with his or her claim
form as prescribed or within a reasonable period thereafter and if he
or she is in a position to do so, an affidavit in which particulars of the
accident that gave rise to the claim concerned are fully set out [My
emphasis]; or
17.2 to furnish the Fund or such agent with copies of all statements and
documents relating to the accident that gave rise to the claim
concerned, within a reasonable period after having come into
possession thereof .
The evidence v ersus the particulars of claim:
[18] In Du Toit obo Dikeni v Road Accident Fund,3 the court quoted with approval
the following extract from Erasmus Superior Court Practice :
2 Solomon and Another v Mussett and Bright Ltd 1926 AD 427 at 435.
3 2016 (1) SA 367 (FB) at para 43 . See also Macatsha v Road Accident Fund (2018/6687) [2019]
ZAGPJHC 553; 2020 (4) SA 275 (GJ) (13 December 2019) at paras 22 – 29.
‘The object of pleading is to define the issues so as to enable the other party
to know what case he has to meet. The parties are, therefore, limited to their
pleadings: a pleader cannot be allowed to direct the attention of the other
party to one issue, and then at the trial attempt to canvas another. However,
since pleadings are made for the court . . . it is the duty of the court to
determine what are the real issues between the parties and, provided no
possible prejudice can be caused to either party, to decide the case on these
real issues. . . ’
Evaluation and c onclusion:
[19] As indicated , no witnesses were called by the Fund in support of its case and
no evidence was elicited from the plaintiff to assist the Fund in its plight. It is
clear from the evidence of the plaintiff, read with the description of the
collision on the accident report, that the collision occurred when the insured
driver executed a right turn and thereby cutting directly across the path of
travel of the plaintiff .
[20] A reasonable man in the position of the insured driver would not only have
observed the p laintiff ’s approach , if a proper lookout was kept, but would
also have respected the p laintiff ’s right of way before executing a right turn. If
this was done, no collision would have occurred . There is accordingly also
no factual basis for a finding of contributory negligence .
[21] Section 19(f) of the Act requires nothing more than the submission of the
affidavit to the Fund. The argument pertaining to section 19(f) of the Act is
unmeritorious as the affidavit was signed by the plaintiff and submitted to the
Fund , together with all relevant statements and documents on 08 June 2020,
without the Fund taking issue therewith.
[22] The plaintiff submitted the accident report to the Fund and r eference was
made to it during the re -examination of the plaintiff . This accident report
accords with h is evidence in court. How the collision occurred , as set out in
the particulars of claim , does not amount to the plaintiff changing his version .
For the same reason, I am satisfied that the Fund was not prejudiced by the
pleading as it was aware of the real issue in this matter .
Costs:
[23] I find no reason why the costs should not follow the result, with the Fund
paying the plaintiff’s costs. A cost order on a party and party scale, scale B,
is appropriate.
Order:
In the result the following order is made:
1. The merits and quantum are separated in terms of Rule 33( 4) of the Uniform
Rules of Court:
2. The quantum is postponed sine die;
3. The collision under consideration was caused solely by the negligence of the
insured driver ;
4. The defendant is liable for 100% of the plaintiff ’s agreed upon or proven
damages;
5. The defendant shall pay the costs of this hearing on a party and party scale ,
scale B .
STANTON, A
JUDGE
On behalf of the Plaintiff: Mr H. Strauss
On instruction of: Gildenhuys Malatji Inc.
Care of : Elliott, Maris Attorneys
On behalf of the Defendant: Mr M.A. Mogano
On instruction of: The State Attorney