SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 21176/2016
(1) Reportable: Yes/No
(2) Of Intere st To Other Judges: Yes/ No
(3) Revised: Yes/No
Date: 16 April 2025
Signature: Suder AJ
In the matter between:
CHRISTINA SITHOLE PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
This matter has been heard in open court and is otherwise disposed of in terms of
the directives of the judge president of this division. this judgment was prepared and
authored by the judge whose name is reflected herein and is handed down
electronically by circulation to the parties/their legal representatives by e -mail an d by
uploading it to the electronic file of this matter on caselines. the date and for hand -
down is deemed to be 16 April 2025.
SUDER, AJ
Introduction
[1] This matter was allocated to me for hearing on the default judgment trial roll
on 16th of October 2024. The matter was set down on the default judgment roll
pursuant to the Defendant failing to comply with an order granted by the interlocutory
court on 26th November 2021. Counsel for the Plaintiff was in attendance with no
appearance on behalf of the Defendant. The issue for determination before this court
is that of merits and quantum.
[2] The plaintiff lodged a delictual claim with the Defendant in t erms of the
provisions of the Road Accident Fund Act, No. 56 of 1996 (“the Act”) claiming
damages resulting from the injuries sustained in a motor vehicle collision which
occurred on 28th December 2013. The Plaintiff alleges that the motor vehicle collisio n
in which she was injured was caused by the negligence of the driver of a motor
vehicle bearing registration letters and numbers V[...] (“the insured vehicle”).
[3] In the Particulars of claim the Plaintiff avers that the accident was caused by
driver of the insured vehicle who was negligent in several respects. The Plaintiff
averred that the insured driver:
3.1 Encroached into the Plaintiff’s travelling lane;
3.2 Failed to keep a proper lookout;
3.3 Drove the insured vehicle without due regard to th e right and safety of
other road users;
3.4 Travelled at an excessive speed;
3.5 Failed to avoid the accident when, by taking reasonable and proper
care (including, but not limited to travelling more slowly, swerving) he both
could and should have done so;
3.6 Failed to apply the brakes of the insured motor vehicle at all,
alternatively timeously or sufficiently;
3.7 Failed to maintain any, alternatively sufficient control over the insured
vehicle;
3.8 Omitted to drive with skill, diligence, caution and/ or circumspection;
3.9 Failed to avoid the accident when by the exercise of reasonable care
he could and should have done so;
3.10 Moved into his incorrect side of the road at a stage and place and in a
manner that was neither safe nor opportune;
3.11 Failed to remain on his correct side of the road.
[4] The Plaintiff was a passenger and allegedly sustained bodily injuries as a
result of the collision. At the time of the accident and instituting the claim against the
Defendant, the Plaintiff was a minor and represented by her mother. At the date of
the hearing the Plaintiff was 24 years and had substituted her mother who had
instituted the action on her behalf.
[5] In the particulars of claim commencing action dated 15th March 2016, the
plaintiff claims damages for personal injuries sustained as well as future medical
expenses, future loss of income, general damages and past loss of income in the
sum of R4 000 000.00. In the application for default judgment, the plaintiff claims an
amount of R9 000 000.00.
[6] The background to the procedural history in this matter is relevant to setting
the foundation for the approach taken by this court when considering the request for
default judgement and submissions made by Plaintiff’s counsel on 16th October 2024
relating to the issue of quantum and merits.
[7] Aside from the issue of quantum and merits this court identified two
procedural issues which need addressing, which are relevant to this matter being
brought to the default judgment court. These were not brought to this court’s
attention by Plaintiff’s cou nsel however this court finds it necessary to address same.
[8] The first issue is the order granted on 26 November 2021 dealing with the
striking out of the Defendant’s defence in the event of non -compliance and whether
the court order directed an ipso fa cto striking out of the Defendants defence. The
second issue is the procedural consequence of the Plaintiff serving a Rule 28 Notice
of Amendment on the Defendant, simultaneously with the court order (26 November
2021) directing compliance by the Defendant , on 24th August 2022. The relevance of
this is two -fold: 1) The service of the Rule 28 Notice re -opened pleadings and the
issue to be decided is whether the court order dated 26 November 2021 would have
effect if pleadings were re -opened, and 2) The Plain tiff failed to deliver the amended
pages and the issue to be decided is whether the matter was ripe for hearing, even
on the default judgment roll.
[9] The determination of the above issues is relevant to the Defendant’s position
when considering the defau lt judgment sought by the Plaintiff. It is reiterated that
these issues were not brought to this courts attention by Plaintiff’s counsel, who
simply indicated that the Defendant had not participated in the proceedings and it
was unlikely that the Defendant would participate in the proceedings.
Background to Procedural History
[10] The Plaintiff, represented by her mother, issued summons on 16th March 2016.
The Defendant filed a Notice of Intention to Defend and entered its Plea and Special
Plea on 12th April 2016. The Defendant delivered Notices in terms of Rule 35(8),
35(10), 36(4) and served an unsigned Discovery Affidavit on 7th June 2016
(uploaded to caselines on 25th October 2023).
[11] On 20 November 2019, the matter was certified trial ready, subje ct to
compliance by the parties as follows:
11.1 Defendant to appoint expert before end December 2019
11.2 Defendant to file expert report by end March 2020
11.3 Plaintiff to file outstanding reports by end February 2020
11.4 Joint minutes to be filed b y end April 2020
Interlocutory Application and Order/Striking of Defendant’s Defence
[12] The Plaintiff invited the Defendant to a Pre -Trial conference on 29th
September 2021.
[13] The Plaintiff brought an interlocutory application on 26th November 2021 to 1)
seek compliance by the Plaintiff with Notice in terms of Rule 37(1) (a) and to attend a
pre-trial conference in compliance with Chapter 6 of the Judge President’s Practice
Directive of 2021 within 10 (ten) business days of electronic service of the order, 2)
for the Defendant to respond to the issues raised in terms of Rule 37(4) and at the
pretrial conference and 3) for the striking out of the Defendants defence in the even t
of non -compliance and for the matter to be enrolled in the Default Judgment Trial
Roll (underline is my emphasis).
[14] The order sought through the interlocutory court was granted. Although the
court order was sought on the basis of the Defendant’s dila tory conduct and
prejudice to the Plaintiff’s case, the court order was only served upon the Defendant
on 24th August 2022, almost a year later.
[15] Interestingly, the Plaintiff, simultaneously with the delivery of the interlocutory
order, also delivere d a Rule 28 Notice on 24th August 2022, amending the initial
claim of R4,000,000 -00 (Four Million Rand) to R9,000,000 -00 (Nine Million Rand).
[16] The matter was before court on 31 August 2022 and was removed from the
roll. This court is not privy to the r easons for the removal, however notes from the
timeline that as at 31 August 2022, the prescriptive 10 (ten) day period for
compliance with the court order and in respect of the Rule 28 Notice would not have
lapsed.
[17] A pertinent question which arises f rom the court order issued by the
interlocutory court is whether the court order ipso facto strikes the Defendant’s
defence in the event of non -compliance. The Plaintiff sought an order for the striking
of the Defendants defence in the event of non - compli ance with the court order within
10 days of service thereof upon the Defendant. The question which arises is whether
the court order ipso facto resulted in the striking of the Defendant’s defence upon
non-compliance or whether the Plaintiff was required to take a second step of
making an application for the striking out on the same papers. This is also relevant to
the re -opening of the pleadings occasioned by the Rule 28 Notice of Amendment,
served simultaneously with the court order.
[18] An application to strike out a defence is regulated by Rule 30A which provides
as follows:
“(1) Where a party fails to comply with these rules or with a request made or
notice given pursuant thereto, or with an order or direction made in a judicial
case management process referred to in rule 37A, any other party may notify
the defaulting party that he or she intends, after the lapse of 10 days from the
date of delivery of such notification, to apply for an order:
(a) that such rule, notice, request, order or direction be co mplied with; or
(b) that the claimant or defence be struck out.
(2) Where a party fails to comply within the period of 10 days
contemplated in subrule (1), application may on notice be made to the court
and the court may make such order thereon as it de ems fit.”
[19] The striking out of a defence is a drastic step and should be the last resort.
The court is clothed with a discretion to strike out the defence for reasons of non -
compliance, which must be exercised judicially. A court must be appraised of
sufficient facts to exercise its discretion judicially. It must be shown that the
defendant deliberately and contemptuously disobeyed the court order directing
compliance.1
[20] In the case of Wilson v Die Afrikaans Pers Publikasies (EDMS) BPK 1971
(3) SA 4 55 (T) at 462 H - 463 B , the court held as follows:
“The striking out of a defendant’s defence is an extremely drastic step which
has the consequences that the action goes forward to a trial as an
undefended matter. In the case if the orders were granted i t would mean that
a trial court would eventually hear this action without reference to the
justification which the Defendant has pleaded and which it might conceivably
be in a position to establish by evidence. I am accordingly of the view that
very grave step will be resorted to only if the court considers that a Defendant
has deliberately and contemptuously disobeyed its order.”
[21] In the case of Fakie N.O. VCC II Systems (Pty) Ltd [2006] ZASCA 52; 2006
(4)SA 326 (SCA) at paragraph 22 , the SCA laid dow n the requirements for a
contemptuous finding, as follows:
“(a) The civil contempt procedure is a valuable and important mechanism from
securing compliance with the court orders, and survives constitutional scrutiny
in the form of a motion court applicatio n adapted to constitutional
requirements.
1 Wilson v Die Afrikaans Pers Publikasies (EDMS) BPK 1971 (3) SA 455 (T) at 462 H - 463 B
b) In particular the Applicant must prove the requisites of contempt (the
order, service or notice, non -compliance, and wilfulness and mala fides)
beyond reasonable doubt.
c) But once the Applicant has proved the order, service or notice and non -
compliance, the Respondent bears an evidential burden in relation to
wilfulness and mala fides.”
[22] In terms of the Revised Pra ctice Directive (June 2021), if the Defendant fails
to comply with any compelling Order, the Plaintiff must apply in the Trials
Interlocutory Court for a referral to the Registrar to obtain a date for Default
Judgment. This is supported by Rule 30A(1)(b) w hich states that when a party fails
to comply with the Rules or with a request made or notice given pursuant thereto, or
with an order or direction made by a court or in a judicial case management process
referred to in rule 37A, the other party may notify the defaulting party that he or she
intends, after the lapse of 10 days from the date of delivery of such notification, to
apply for an order that the claim or defence be struck out. Failing compliance with
the compelling order, it was incumbent on the Pl aintiff to apply to the TIC for a
striking of the Defendant’s defence and for a referral to the Registrar to obtain a date
for default judgment.
[23] However, it appears from the court order issued on 26th November 2021 that
there was an ipso facto striking out of the Defendant’s defence failing compliance by
the Defendant. The striking out of the Defendants defence led to this matter coming
before this court. However, the striking out order does not preclude the Defendant
from participating in the proceedings to the extent of testing the validity of the
Plaintiff's version, by cross -examining any witness which may be called by the
Plaintiff2. In Minister of Police v Michillies3 the court, in its judgement, placed
reliance on Motala and stated that w hen a plea has been struck, it does not bar the
defendant from proceeding to defend the action. The court held that when the
Defendant’s defence is struck out, the merits are not determined in favour of the
plaintiff. The onus will still remain with the Pl aintiff to prove its case on a balance of
2 Motala NO v RAF (42353/2019) (2023) ZAGPJHC 1323 (15 November 2023)
3 Minister of Police v Michillies (1011/2022) [2023] ZANWHC 90 22 June 2023
probabilities. The learned judge then proceeded to express the view that these
probabilities can be attacked during cross -examination of the plaintiff, on both the
issues of merits and quantum. The striking out doe s not remove the Defendant’s
constitutional right of access to courts in its entirety. Following this, the question to
be addressed is whether the Rule 28 Notice of Amendment re -opened pleadings.
Rule 28 Notice of Amendment
[24] The Rule 28 Notice of Ame ndment was served on the Defendant
simultaneously with service of the compelling order, on 24th August 2022.
[25] There was no objection to the Rule 28 Notice of Amendment, within the
prescribed period for delivering such objection. Absent objection, the P laintiff was
required to effect the amendment by delivering each relevant page in its amended
form.4
[26] This court could not find any document which demonstrated the Plaintiff’s
compliance with Rule 28(5) and 28(7) of the Uniform Rules which states:
“28.5 If no objection is delivered as contemplated in subrule (4), every party
who received notice of the proposed amendment shall be deemed to have
consented to the amendment and the party who gave notice of the proposed
amendment may, within 10 days after th e expiration of the period mentioned
in subrule (2), effect the amendment as contemplated in subrule (7).”
“28.7 Unless the court otherwise directs, a party who is entitled to amend shall
effect the amendmen t by delivering each relevant page in its amended form.”
[27] The records do not indicate that the Plaintiff served the amended pages on
the Defendant in terms of the Rules. It is this court’s view that the pleadings have not
closed. This court did not fin d the amended pages or proof of the amended pages on
4 Rule 28(7) of the Unform Rules of Court
caselines. It is apposite to mention that the default judgement is requested on the
basis of the amended pleadings.
[28] Rule 29 of the Uniform Rules of Court provides that pleadings will be
considered c losed —
“(a) if either party has joined issue without alleging any new matter, and
without adding any further pleading;
(b) if the last day allowed for filing a replication or subsequent pleading has
elapsed and it has not been filed;
(c) if the parties ag ree in writing that the pleadings are closed and such
agreement is filed with the registrar; or
(d) if the parties are unable to agree as to the close of pleadings, and the
court upon the application of a party declares them closed.”
[29] In Nkala v Harmony Gold Mining Co Ltd5 the court stated the following
regarding litis contestatio :
“The issue as to when the stage of litis contestatio is reached in the modern -
day law is a complicated one. It is reached when pleadings are closed. But
this is no simple matter. Guidance as to when pleadings are closed can be
found in Rule 29 of the Uniform Rules of Court. It advises that pleadings are
closed if all parties to the case have joined issue and there are no longer any
new or further pleadings, or the time period for the filing of a replication has
expired, or the pa rties have agreed in writing that the pleadings have closed
and have filed their agreement with the registrar of the court, or the court, on
application, has declared that the pleadings are closed. At that point the
pleadings are treated as being closed an d the proceedings are said to have
reached the stage of litis contestatio. In everyday practice, they are normally
5 2016 (5) SA 240 (GJ) at para188.
closed as soon as the period for the filing of the replication has expired, for at
that stage the issues have become identified and parties a re able to
commence preparation for battle. Pleadings, though closed, will be re -opened
should an amendment be effected, or should the parties agree to alter the
pleadings. Amendments to pleadings can be brought by any party any time
before judgment is del ivered.”
[30] In Ngubane v Road Accident Fund6, the court at paragraph 18 stated:
“Litis contestatio is, in modern practice, synonymous with the close of
pleadings as envisaged by rule 29 of the Uniform Rules of Court. As the
defendant has never entered t he fray and did not deliver a plea, the pleadings
could not close and litis contestatio could not be reached.”
[31] The court in Ngubane went on further to state the following:
“When due consideration is had to the amended particulars of claim, the
amendm ents are substantial and material. There are new aspects that in my
view would require some consideration. It may be so that this increase in
quantum did not alter the cause of action, the identity of the parties and the
scope of the issues in dispute as i t was stated by the plaintiff. Notwithstanding,
the scope of damages has been increased significantly and it would without a
doubt require a pleading. This Court is unable to agree with the plaintiff that
the amendment did not redefine the issues in relati on to the claim for general
damages, as the amount remained the same. This assertion, in my view, is
somewhat mischievous as it is not for the plaintiff to prescribe how the first
defendant should conduct their defence. In my v iew, the plaintiffs amended
particulars of claim re -opened the pleadings and interrupted litis contestatio
and/or litis contestatio fell away. Since litis contestatio fell away, the first
defendant was yet to file its amended plea by the date of the death of the
deceased.”
6 2022 (5) SA 231 (GJ).
[32] The Rule 28 Notice of Amendment seeks a substantial amendment to the
quantum claimed by the Plaintiff, increasing it from R4 000,000 -00 to R9 000,000 -00.
This required the Defendant to plead to such a substantial amendment, which the
Defendant was, in my opinion, unable to do absent the filing of the amended pages.
Only once the amended pages are delivered would the Defendant be able to plead
to the amendments.
[33] There is no indication that the Plaintiff, in compliance with Rule 28 (7) of the
Uniform Rules of Court delivered the relevant pages of the particulars of claim in its
amended form on the Defendant. The only indication of an amended claim is found
in the Plaintiff’s Practice Note dated 25th September 2024, which states that the
Plaintiff will claim judgment at the trial as per the amended particulars of claim.
[34] This court is of the view that if in fact the amended pages were served on the
Defendant, this would have re -opened pleadings, resultant that the Defendant could
enter the fray of delivering an amended plea. Even if the compelling order resulted in
an ipso facto striking of the Defendant’s defence, the Rule 28 Notice re -opened
pleadings and the Defendant was still entitled to plead on the amended quantum.
[35] This court is of the view that pleadings have not closed and the matter should
not be before this court. Notwithstanding the aforesaid, this court finds it apposite to
comment on the application for default judgement.
Default Judgment Hearing
Rule 38(2) applic ation and Rule 36(9)(a) and (b) Notices
[36] On the day of the hearing, Plaintiff’s Counsel introduced himself in chambers
and indicated that the matter was ready to proceed based on the expert affidavits.
Plaintiff’s Counsel was advised that there was no Rule 38(2) application for this court
to consider whether the matter could proceed on the affidavits filed by the medical
experts. The matter stood down until 2pm at which time Counsel subsequently
uploaded the Rule 38(2) application, which application was served electronically on
the Defendant the same day, viz. 16th October 2024, at 13h51pm.
[37] Plaintiff’s Counsel sought an order for the Rule 38(2) application to be granted
and for the matter to proceed on the affidavits filed by the medical experts.7 The Rule
38(2) application was served on the Defendant ten minutes before this court
resumed. The Plaintiff’s Rule 38(2) application included an application for
condonation. This court brought to the attention of Plaintiff’s Counsel that the Plaintiff
did not address the grounds for condonation i n the Rule 38(2) application. Plaintiff’s
Counsel submitted that the Defendant did not file expert reports and have not
participated in the matter since the termination of its erstwhile legal representatives.
Plaintiff’s Counsel argued there was no prejudi ce to the Defendant.
[38] Plaintiff’s Counsel submitted that the expert Addendums were served on the
Defendant the morning of the hearing. Plaintiff’s Counsel submitted that the
Defendant showed no interest in the matter and the Defendant would not be
prejudiced.
[39] On 15th and 16th October 2025, the Plaintiff uploaded Rule 36 (9) (b) Notices
for the Addendum Reports in respect of the following experts:
39.1 Specialist Neurosurgeon Report compiled by Dr LF Segwapa Inc - Date
of Re -assessment 8th October 20 24;
39.2 Neuropsychologist Report compiled by Dr S F Mphuthi - Date of
Addendum 10th October 2024;
39.3 Education Psychologist Report compiled by Dr E M Pitsoane - Date of
interview 12th October 2024;
39.4 Occupat ional Therapist Report compiled by Kgomotso Montwedi (no
acknowledgement of service) - Date of Addendum 14th October 2024;
7 Havenga v Parker 1993 (3) SA 724 (T)
39.5 Industrial Psychologist Report compiled by Talifhani Ntleni - Date of
Addendum 15th October 2024;
[40] The Independent Actuaries a nd Consultants Addendum Report, compiled on
16th October 2024, was uploaded without an accompanying Rule 36(9)(b) Notice.
[41] The Plaintiff’s expert reports in this matter were filed during April and August
2022, almost two years prior to the hearing of t his matter. Plaintiff’s Counsel
indicated that the matter was before the DJP in 2023 and the Plaintiff had to obtain
Addendum Reports since the expert reports were prepared two or more years prior
to the matter coming before court in 2023.
[42] The Plainti ff had almost a year to obtain the Addendum Reports but the
Plaintiff was only assessed between 8th October 2024 and 15th October 2024 for the
Addendum Reports and the Addendum Reports were only uploaded on 15th and 16th
October 2024.
[43] There is no indi cation in the records that there was service upon the
Defendant of the Rule 36(9)(b) Addendum Report for the Occupational Therapist and
for the Independent Actuary. The Rule 36(9)(b) Notice for remaining expert reports
were served on the Defendant on 14th and 15th October 2024, when the matter was
set down for default hearing on 16th October 2024.
[44] Rule 36(9)(b) of the Uniform Rules of Court states as follows:
“(9) No person shall, save with the leave of the court or the consent of all
parties to the s uit, be entitled to call as a witness any person to give evidence
as an expert upon any matter upon which the evidence of expert witnesses
may be received unless — (a) where the plaintiff intends to call an expert, the
plaintiff shall not more than 30 day s after the close of pleadings, or where the
defendant intends to call the expert, the defendant shall not more than 60
days after the close of pleadings, have delivered notice of intention to call
such expert; and (b) in the case of the plaintiff not more than 90 days after the
close of pleadings and in the case of the defendant not more than 120 days
after the close of pleadings, such plaintiff or defendant shall have delivered a
summary of the expert’s opinion and the reasons therefor: Provided that the
notice and summary shall in any event be delivered before a first case
management conference held in terms of rules 37A(6) and (7) or as directed
by a case management judge.”
[45] Plaintiff’s counsel attempted to convince this court that the short service of the
38(2) application and the 36(9)(b) notices would not prejudice the Defendant as the
Defendant did not participate in the proceedings. If this court were to accept the
submission by Plaintiff’s Counsel and accede to the late/short service of the 38(2 )
application and the 36(9)(b) notices on the Defendant, this Court would be depriving
the Defendant of its right to interrogate the Plaintiff’s expert reports which the
Defendant was rightfully entitled to do. This court was not inclined for the matter to
proceed on quantum and directed that the determination of quantum be postponed.
[46] Following this court’s decision on the issue of quantum, Plaintiff’s Counsel
proposed that the matter proceed on the merits, alternatively that the matter be
postponed. T his court was not inclined to postpone the hearing on the merits at the
times as the Plaintiff was in attendance and a postponement would have
inconvenienced the Plaintiff. This court proceeded to deal with the issue of merits.
Plaintiff’s Evidence on the Merits
[47] The Plaintiff claims compensation for injuries allegedly sustained as a result of
a collision arising from the negligent driving of the insured vehicle. To be successful
in a claim for damages against the Defendant, the Plaintiff must prove negligen ce on
the part of the insured driver.
[48] The Plaintiff testified that on 28th December 2013, on her way back home, she
was at the back of a bakkie. She testified that she was standing in the back of the
bakkie, which had an open canopy. She testified tha t the driver of the vehicle in
which she was a passenger tried to overtake another vehicle, lost control and
overturned. The next thing she was on the road with injuries and some people came
to assist to take her to hospital. When prompted by Plaintiff’s C ounsel, the Plaintiff
testified that the driver did not do anything to avoid the accident.
[49] Plaintiff’s Counsel submitted that the evidence was on the Accident Report.
Plaintiff’s Counsel made submissions regarding the contents of the Accident Report
and the recordal therein of how the accident happened. Plaintiff’s Counsel submitted
that the merits must be determined to be in favour of the plaintiff and conceded at
100% as the requirement was to demonstrate 1% negligence.
[50] According to the Accident Report, the driver of the insured vehicle (Vehicle A)
was overtaking the vehicle (Vehicle B) in which the Plaintiff was a passenger, when
a vehicle suddenly approached in front of Vehicle A. The driver of vehicle A swerved
to avoid the oncoming vehicle an d collided with Vehicle B. Vehicle A lost control and
rolled off the road and Vehicle B swerved and stopped in the middle of the road with
people in it. The sketch and plan of the accident scene depicts the exact description
of the location of Vehicle A an d Vehicle B.
[51] The version of events recorded in the Accident Report differs from the
Plaintiff’s version that the vehicle in which she was a passenger (Vehicle B) lost
control and overturned. The Plaintiff’s testimony does not support the Plaintiff’s
pleaded case.
[52] This court identified further contradictions in versions in the expert reports
which are mentioned only for the purpose of addressing the merits of the case. The
neurosurgeon, Dr Segwapa, recorded in his expert report that he was informed that
the Plaintiff was an asleep passenger in the back of a bakkie without a canopy. This
casts doubt on whether the Plaintiff actually witnessed how the accident took place.
This is also in contradiction to the Plaintiff’s testimony.
[53] The education al psychologist reported that according to the Plaintiff the car
she was travelling in collided with another car and overturned. There is no indication
in the Accident Report that the vehicle (Vehicle B) in which the Plaintiff was a
passenger overturned. T he report of the occupational therapist recorded that the
Plaintiff reported that she was a passenger at the back of a van with no canopy and
she woke up at the scene of the accident. This version was not placed before this
court.
[54] The Plaintiff did no t call any witnesses to confirm her testimony. She testified
as a single witness and her version of events was uncontested by the absence of the
Defendant. Section 16 of the Civil Proceedings Evidence Act 25 of 1965 , as
amended provides that judgment may b e given by a court on the evidence of a
single and credible witness. This court must therefore be satisfied that the Plaintiff’s
evidence is credible. In making such a determination this court must have regard to
all the evidence before it.
[55] In the abs ence of a defendant on trial, a Plaintiff is still required to adduce
admissible evidence in support of his or her pleaded case. In determining whether
the evidence supports a finding in the Plaintiff’s favour, the Court is still required to
apply the appl icable rules and principles, as it would have done in a defended
matter8.
[56] In Minister of Justice v Seametso9 the Appellate Division, regarding the
approach to be adopted to the evidence of the single witness which stands
uncontradicted, the court stat ed the following:
"Counsel for the appellant contended that the fact that Daniel's evidence
stands uncontradicted does not relieve the plaintiff from the obligation to
dischar ge the onus resting upon him. If thereby is meant that Daniel's
evidence should not have been accepted merely because it stands
uncontradicted then the contention is sound, for as was said by Innes CJ in
Sittman v Kriel, 1909 T.S 538 at p 543:
"It does not follow, because evidence is uncontradicted, that therefore it is true.
Otherwise, the Court, in cases where the defendant is in default would be
bound to accept any evidence the plaintiff might tender. The story told by the
person on whom the onus rests m ay be so improbable as not to discharge it."
8 Siffman v Kriel 1909 TS 538
9 1963 (3) SA 530 (A) at 534 G -H and 535 A
[57] In the matter of Louis v RAF10, on the evidence of the single witness, the
Court held that "the brief, cursory and insubstantial nature of the plaintiff's evidence
resulted in a paucity of facts being estab lished that may be used in support of the
plaintiff's duty to discharge the onus that rests upon him regarding the negligence of
the driver of the unidentified vehicle. A plaintiff is not relieved of this obligation even if
he is a single witness and his e vidence stands uncontradicted".
[58] The Plaintiff’s testimony does not accord with her pleaded case. This casts
doubt on whether there was negligence on the part of the insured driver, as pleaded
in the Plaintiff’s particulars of claim. The Plaintiff’s viva voce evidence appears to
absolve the insured driver from any liability. However, this court cannot ignore the
accident report which records that there was a collision. It would not be in the
interest of justice to grant an order of absolution and neithe r would it be in the
interests of justice to grant default judgement on the merits. This court is of the view
that the contradictions in respect of liability should be ventilated at trial.
[59] In the result, the following order is made:
59.1 The determination on the issue of quantum is postponed sine die ;
59.2 The application for default judgement on the merits of the claim is
refused.
59.3 There is no order as to costs.
F SUDER
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
10 (23724/2018) [2022] ZAGPJHC 12 (10 January 2022) at paragraph [16
For the Plaintiff: Advocate E M Lekgwati
Instructed by: Lebala Moloi Attorneys Inc
For Defendant: No appearance
Date of Hearing: 16 October 2024
Date of Judgment: 16 April 2025