IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)

CASE NO: 867/2023

In the matter between:

NOMANA KALIPHA Plaintiff

and

ROAD ACCIDENT FUND Defendant
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J

[1] Section 17 of the Road Act Fund Act 56 of 1996 makes provision for the Road
Accident Fund’s liability for loss or damage suffered by a person as a result of bodily
injuries caused by or arising from the driving of a motor vehicle by any person if the
injury is due to the negligent or wrongful act of the driver .

[2] On 22 February 2023 , the plaintiff issued summons against the Road Accident
Fund (RAF or the Fund) claiming R3 300 000.00 in damages under several heads , in
respect of a ‘Webber III ’ (ankle) injury allegedly sustained by her as a result of being

knocked down by an unknown vehicle on 26 January 2022 while walking on the road at
or near Coffee Bay Junior Secondary School in Co ffee Bay.

[3] RAF denie d liability for the plaintiff’s damages and alleged in its plea that her
injury did not result from the alleged accident. In the alternative, RAF pleaded that the
alleged accident was as a result of the plaintiff’s sole negligence, in that she walked in
the path of the unknown driver , further alternatively, that her negligence contri buted to
the occurrence of the alleged accident.

[4] However, o n 18 June 2024, RAF ’s defence was struck out1 on application by the
plaintiff following its failure to comply with the plaintiff’s request for discovery as
envisaged in Rule 35 of the Uniform Rules of Court . Resulting from the striking out of
RAF’s defence, the plaintiff made an appli cation for judgm ent to be entered against the
defendant.

[5] The matter served before me on 04 December 2024 for hearing as a n application
for a default judgment. On the date of hearing, Mr Baceni who represented the plaintiff ,
requested the court to determine only the issue of the Fund ’s liability and separate the
quantum of damages for determination at a later stage. This application was granted as
envisaged in Uniform Rule 33(4).

[6] Notwithstanding the striking out of RAF’s defence, the plaintiff still had to
establish her entitlement to the default judgment. She gave oral evidence in support of
her application , and she was the only witness. She also relied on documents that were
filed with RAF at the time she lodged her claim . The bundle of these documents
contained medical records from Zitulele Hospital where the plaintiff was admitted
following the alleged motor vehicle accident ; and those from Bedford Hospital where
she was transferred for further treatment . It also contained the contents of the police
docket which included the accident report form and sketch plan with the key thereto

1 Per court order of Mjame AJ dated 18 June 2024.
which S ergeant Ngambu of the Coffee Bay South African Police Service comp iled.
Below I set out a summary of the plaintiff’s oral evidence.

The plaintiff’s evidence

[7] The plaintiff testified that on 26 January 2022 around 22h00 she was coming
from her part-time employment at White Clay in Coffee Bay . While walking along the
road near a bridge and as she was about to approach a curve , she heard a bang and at
that same time she fell down in the middle of the road. The road was not busy ; it is a
two-way tar road and the only marking s on it were arrows indicating the di rection of the
vehicles. There was no source of light where she was walking, hence it was dark. As a
result of the accident, she sustained an injury to her right ankle and felt pain.

[8] She was woken up from where she fell down by Luyanda Tshemese (Luyand a)
who picked her up, carried her on his back and took her to a nearby home stead of one
Nomava Ndevu where she spent the night. An ambulance was phoned but no one
answered the phone call . On 27 January 2022 a lady named Nombuyekezo Yatha
conveyed her to Zithulele Hospital in her private vehicle. She was admitted at Zithulele
Hospital and t he X-ray examination that was performed revealed that she had a fracture
on her right ankle. She was later transferred to B edford Orthopeadic Hospital f or further
treatment.

[9] According to the sworn statement of Sergeant Ngambu, t he plaintiff reported the
accident at the Coffee Bay police station on 19 March 2022 . Sergeant Ngambu
attend ed the alleged accident scene. The accident report that she subsequently
compiled is dated 19 March 2022 . Annexed to the accident report is a sketch plan and
key thereto in which the point of impact is depicted as being near the edge of the lane
on the left side of the of the road with arrows drawn on that lane to indicate the path of
the moving vehicles. The plaintiff had difficulty confirming from the sketch plan the side
of the road on which she was knocked down by the unknown vehicle .

[10] At the end of the plaintiff’s evidence -in-chief I asked her questions in order to
elucidate certain aspects of her evidence. Those related to the relevant time of impact,
her path on the road and the path of the vehicles that moved thereat, inter alia. Below I
set out what emerged from the plainti ff’s evidence during my questioning .

[11] She was not facing the oncoming traffic when she was walking on the road, and
therefore, the vehicle that knocked her down came from behind. She did not see the
vehicle, nor did she see any beam of its headlamps or heard a hooter before she heard
a bang. She surmised that she was knocked down by a vehicle . Before she heard a
bang she was constantly look ing around because she was walking alone at night. The
point of impact as depicted on the sketch plan is indeed on the path of the vehicles that
were approaching from behind. The reason why she walked in the path of the vehicles
was that she was in a hurry , and she was alone on the road.

[12] The plaintif f further testified that it was from Luyanda that she heard that she was
knocked down by a vehicle as a matter of fact . Luyanda was not with her when she fell
down after hearing a bang . She estimated that he must have emerged from a pathway
not far from th e road. Her understanding of the rules of the road is that a pedestrian
must walk on the correct side of the road. She was in her sober senses when she
walked on the road and believed that the path she walked in was the correct side of the
road.

[13] The medical records from Zithulele Hospital indicate that the plaintiff was
admitted thereat on 27 January 2022 with the history of ‘a car driving over her leg .’ They
also show that the diagnoses of the doctors who treated the plaintiff in both hospitals,
was that she sustained a right ankle injury which required surgical intervention.

[14] The police officer who drew the accident report and depose d to a sworn
statement on her visitation of the alleged accident scene; and Luyanda were not called
to testify.

Submissions on behalf of the plaintiff

[15] Mr Baceni submitted that the plaintiff succeeded in establish ing, on a balance of
probabilities, that a motor vehicle accident occurred as a result of which she sustained
an injury to her right ankle. It was Mr Baceni ’s submission further that in the light of the
fact there was no other object on the road which may hav e collided with the plaintiff, it
follows that the plaintiff ’s injury resulted from being hit by an unknown vehicle.

[16] While he readily conceded that what is recorded in the hospital record s as the
history of the plaintiff’s injury was a far cry from the description that she gave of how the
accident to place, Mr Baceni submi tted that this contradiction w as not material as to
result in the rejection of the plaintiff’s version. He further submi tted that the plaintiff’s
evidence establishe d that the driver of the unknown vehicle that knocked her down was
solely negligent. In making this submission , Mr Baceni took the view that if the plaintiff
did not see any vehicle lights, an inference must be drawn that the insured driver was
wholly negligent.

[17] It was further submitted on behalf of the plaintiff, as alternative argument, that i n
the event that the court finds that the accident was not due to the sole negligence of the
unknown driver, but that the plaintiff contributed to its occurrence by her negligence, the
appropriate degree of apportionment of liability may accordingly be applied .

The law

[18] In order to succeed in her claim, the plaintiff had to establish on a balance of
probabilities that her injury arose out of the negligent driving of a motor vehicle and that
there is some connection between the driving and her injury.2 In the present case, the
plaintiff will only succeed if she satisfies the Court on a preponderance of probabilities
that her version is true and accurate and therefore acceptable. It is trite that the

2 Kemp v Santam Insurance Co Ltd 1975(2) SA 329 (C) at 330F; Van Wyk v Lewis 1924 AD 438 at 444 .
estimate of the credibility of a witness will be inextricably bound up with a consideration
of the probabilities of the case.3

[19] Explaining what the standard of proof on a balance of probabilities entails,
learned author Schwikkard states as follows:4

‘In civil cases the burden of proof is discharged as a matter of probability. The
standard is often expressed as requiring proof on a “balance of probabilities” but
that should not be understood as requiring that the probabilities should do no
more than favour one party in preference to the other. What is required is that the
probabilities in the case be such that, on a preponderanc e, it is probable that the
particular state of affairs existed.’

[20] And, i n Stacey v Kent ,5 Kroon J wrote:

‘The inquiry after the case remains whether the plaintiff has, on a balance of
probabilities, discharged the onus of establishing that the collision was caused by
negligence attributable to the defendant. . .’

[21] In the discussion that follows I apply these principles of the law to the facts of the
plaintiff’s app lication for default judgment.

Analysis

[22] Despite the fact that RAF’s defence was struck out, this Court must be satisfied ,
on the facts presented by the plaintiff through her evidence, that on a preponderance of
probabilities , (a) she suffered bodily injury; (b) arising out of the negligent drivi ng of a
motor vehicle.


3 National Employers’ General Insurance Co Ltd v Jagers [1984] 4 All SA 622 (E), at 624 -5.
4 Schwikkard PJ ( et al), Principles of Evidence , 4th Ed, 2016, page 627 , at 32.7.
5 1995 (3) SA 344 (ECD) at 352 I-J.
[23] That the plaintiff sustained an ankle injury on 26 January 2022 is common cause.
What must be determined is whether her injury was caused by the negligent driving of a
motor vehicle.

[24] The starting point is that the plaintif f was a single witness. Section 16 of the Civil
Proceedings Evidence Act 25 of 1965 provides that judgment may be given in any civil
proceedings on the evidence of any single competent and credible witness. In other
words, only credible evidence shall be sufficient to enable a Court to give a judgment .

[25] There is of course no rule of thumb or formula to apply in determining the
credibility of a single witness. The trial court will weigh the evidence of the single
witness and consider its merits and demerits, and having done so, decide whether it is
trustworthy and whether it is satisf ied that the truth has been told despite the
shortcomings or defects or contradictions in the witness’ s evidence.6

[26] The essence of the plaintiff’s testimony is that in as much as she was of sober
senses when the alleged accident occured in the sense that she had not consumed any
intoxicating liquor, she did not see what happened at the crucial moment regarding her
claim – i.e., how the accident took place . She could only estimate that the bang she
heard, her falling down , and the injury she sustained were as a result of the un know n
vehicle colliding with her.

[27] It bears emphasizing that t he plaintiff’s evidence must be based on facts and
nothing else, and certainly not conjecture. There is no direct evidence of the accident
and how the alleged accident happened. The picture portrayed by the plaintiff is that the
driver of the vehicle that knocked her down did not stop after the alleged accident. At
best for her, her version that she was knocked down by a car is derived from what she
heard from Luyanda Tshemese . She would have conveyed this, in turn, to those
attending to her at Zithulele Hospital.


6 S v Sauls 1981 (3) SA 172 (A) at 180E –G.
[28] I am asked to make a finding , from the aforegoing evidence, that the accident
took place; and to draw an inference of negligence on the part of the unknown driver, or
to make such finding of contributory negligence as may appropriately be made against
the plaintiff.

[29] As is trite, there must be positive proven facts from which such inference s can be
made. If there are none, the method of inference fails and what is left is mere
speculation or conjecture.7

[30] On the plaintiff’s version , it follows that Luyanda is the one who must be taken as
having possessed knowledge of facts regarding how the accident happened. His
evidence was, therefore, crucial. However, no basis was laid for the admission of the
evidence of which is Luyanda is the source and the person on whom its probative value
depends . Such evidence remains inadmissible hearsay. What therefore remains is
circumstantia l evidence from which it must be inferred that the plaintiff’s injury arose
from the alleged driving of the motor vehicle ; and if so, whether the unknown driver was
solely negligent.

[31] The cardinal rule of inferential reasoning is that the inference that is sought to be
drawn must be consistent with all the proved facts; if it is not, then the inference cannot
be drawn.8 The inference sought to be drawn must, furthermore, be the ‘more natural,
or plausible, conclusion from amongst several conceivable ones’ when measured
against the probabilities .9 As held in Ocean Accident and Guarantee Corporation Ltd v
Koch ‘plausible’ in this cont ext means ‘acceptable, credible, suitable’.10

[32] In order for this Court to infer that a motor vehicle accident occurred out of which
the injury of the plaintiff arose, and that the accident was caused by the sole negligence

7 S v Essack & another 1974 (1) SA 1 (A) at 16C -E, quoting with approval Caswell v Powell Duffryn
Associates Collieries Ltd [1939] 3 All ER 722 at 733.
8 R v Blom 1939 AD 188 at 202 -203.
9 SA Post Office v Delacy and Another 2009 (5) SA 255 (SCA) at para 35 ; Cooper and Another v
Merchant Trade Finance Ltd (474/97) [1999] ZASCA 97 (1 December 1999) para 7; Govan v Skidmore
1952 (1) SA 732 (N) at 734C -E.
10 1963 (4) SA 147 (A) at 159B -D.
of the drive r, it must be satisfied that the facts that have been set forth by the plaintiff
reflect the probability of what took place on 26 January 2022 at the time and place that
she alleges she was knocked down by a vehicle. Put differently, an inference of the
actual occurrence of the accident and the negligence of the unknown driver would
presuppose that this Court believes the plaintiff’s evidence , or that there are facts which
this Court finds to be proven which support the inference s to be drawn.

[33] Even though the hospital record s indicate that the plaintiff presented with a
history of being in a motor vehicle accident, that history is describe d therein as that of ‘a
vehicle driving over her leg ’. No evidence was adduced to elucidate how the unknown
vehicle drove over the plaintiff’s leg. The plaintiff’s oral evidence was simply that ‘s he
heard a bang and simultaneously fell down. ’ Before that , she did not see the vehicle ,
she heard no hooter and saw no beam of headlamps . It is unsurprising she was not
able to tell the court how the alleged unknown vehicle was driven at the time of the
accident . All of this is despite the fact that she had constantly been looking around as
she walked along the road.

[34] The plaintiff’s testimony is, to say the least, superficial, as though tailored. This is
compounded by the fact that the person who, on her version, came about with
information that she was hit by a car was not called to give evidence. Mr Baceni argued
that from the fact that the plaintiff did not see any beam of head lights, the court must
infer that the unknown driver was negligent. I disagree with this proposition as it is
based on pure conjecture , unsupported by objective facts.

[35] On the plaintiff’s own showing she did not see the vehicle that presumably hit
her, nor did she make any other observation that indicated that a vehicle was
approaching behind her to begin with. All that she heard was a bang which was followed
by her falling down. Miraculously, after she had fallen down Luyanda emerged , woke
her up, and gave her vital information to the effect that she was knocked down by a
vehicle. For someone who kept looking around as she was walking alone in the night,
she had difficulty explaining to the court where and at what stage Luyanda emerged .

[36] The question that follows is whether it is probable that a person who was in her
sober senses while she walked on a quiet road; and who constantly kept looking around
(presumably for possible hazard s or threat to her being) , would not see or hear the
approachi ng vehicle (if she was indeed walking on that road ). Apart from the fact that
the plaintiff inexplicably walked in the path of moving or approaching vehicles, it is
improbable that in those circumstances she would not have seen the vehicle that
knocked her down or heard it approaching . Contrary to Mr Baceni ’s submission that the
shortcomings in the plaintiff’s evidence are immaterial, they relate to the crucial aspects
of her cl aim and are therefore material.

[37] The granting of a default judgment involves an exercise of the discretion by the
court upon a consideration of the evidence adduced in support of th ereof . The vague
manner in which the plaintiff described the incident and the inconsistencies between her
description of the accident and what is contained in the hospital records ; coupled to her
failure to call the person who must be assumed to have had knowledge of the accident,
left this Court in the dark regarding how she sustained her ankle injury. On the e vidence
before me, I am unable to find that the plaintiff’s injury arose from the driving of a motor
vehicle.

[38] For all the aforegoing reasons, I make the following order:

1. The application for default judgment is refused .


__________________
L. RUSI
JUDGE OF THE HIGH COURT


Appearances

For the plaintiff : Adv. Z Baceni
Instructed by : M. Ndlela Attorneys
56 Sprigg Street, Mthatha

Date heard : 04 December 2024
Date delivered : 29 May 2025