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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2021/52359
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
26 MAY 2025
In the matter between:
PHASHA HEMILTON BOROKO Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
MAKGATE AJ:
INTRODUCTION
1. The present action came before this Court as an application for default
judgment against the R oad Accident Fund (RAF) . The plaintiff, Mr Phasha Hem ilton
Boroko, proceeded only with the merits aspect of the claim. He testified on his ow n
without calling any witnesses.
PERTINENT BACKGROUND FACTS TO THE DEFAULT ACTION.
2. During 01 July 2019 at approximately 04H00, the plaintiff testified that he was
a driver of a Kia LDV motor vehicle, bearing registration number F[ …], driving on the
N1 North freeway at and/ or near the Rivonia road off-ramp , when his motor vehicle
collided with a stationary motor vehicle, which according to the accident report, is
described as a black L and Rover , with registration number D […].
3. According to his evidence, he testified that he was on his way to work ,
travelling on the centre lane. The freeway that he was travelling on consists of five
lanes . The road was clear with no other motor vehicles , when suddenly , on the far -
right lane, a black Land Rover appeared from the rear, at a high speed. As it got
closer to him, it changed the lane and moved towards his lane of travel, forcing him
to swerve into the emergency yellow lane. Strangely, t he said Land Rover did not
stop but proceeded, still at a high speed.
4. He then continued with his trip, gradually moving from the yellow lane o nto the
centre lane , reason being that the two left lanes of the freeway , off ramp s onto the
N1 North , to Pretoria .
5. He further testified that f ew moments later, he then came across a group of
bystanders on the yellow lane, waiving at him to stop. He however refused to stop. I t
is at that stage that , when he refocused on the road, he then collided with a black
Land Rover, which was stationary on the centre lane and slightly encroaching the second left lane. According to him, he collided into the rear of the said motor vehicle,
resulting in him , being trapped in his motor vehicle.
6. At this stage, the said bystanders suddenly appeared and approached his
motor vehicle. They tried to open his doors but were unsuccessful. They then fled
the scene with the same Land Rover with which he had collided . While trapped in his
motor vehicle, he was contacted by his motor vehicle tracking company, which
enquired about the notification that they have received. He advised them that he was
involved in a motor vehicle accident. Moments later, an ambulance arrived at the
scene, followed by the members of the Johannesburg Metropolitan Police
Department . He was freed from his motor vehicle and taken by an ambulance to Life
Carstenhof Hospital.
7. He further testified that w hile enroute to the hospital , he saw two motor
vehicles parked on the side of the road, a black Land Rover and a Volkswagen Polo
motor vehicle. He immediately identified the Land Rover as the vehicle with which he
had collided.
8. The plaintiff’s contention is that the sole cause of the accident was due to the
negligent driving of the insured driver who failed to obey the rules and signs of the
road by failing to take sufficient and adequate warning sign( s), for instance, applying
hazards lights, amongst other s, to warn other motorist s.
9. In the circumstances , counsel for the p laintiff submitted that the RAF be found
100% negligent and if there is any apportionment to be made, it should be very
minimal, at least 10% against the p laintiff.
10. The plaintiff was however cross -examined, and he maintained his version ,
save to testify that the freeway was lit by the street’s lights.
ANALYSIS
11. The plaintiff on h is own version, testified that he did not take any evasive
steps to avoid the collision. According to him, even if he had wanted to, it was not
possible in that , the moment he refocused on the road after having briefly observed
the bystanders who were waiving at him, the stationary black Land Rover was
already there, leaving him with no chances to act . There was nothing that he could
have done to avoid the collision. As a result, for him to avoid the collision, there
ought to have been some prior warnings signs, and t his was not the case. In the
circumstances, he testified that he was faced with a sudden emergency that he could
not avoid.
12. In Bhalangile v Road Accident Fund [2023] ZAGPPHC 564; 33595/2021
(19 July 2023) , where a plaintiff collided with a stationary truck parked on the
freeway at night, the court found no fault on the plaintiff and succeeded to prove
100% negligence against the insured driver . In that case, t he stationary vehicle was
deemed to be the sole cause of the accident, especially since the plaintiff had
virtually no chance to avoid it due to poor visibility and no warning signs .
13. In Dlangwana v Road Accident Fund (18983/2021) [2024] ZAGPPHC 403
(17 April 2024) , in a case involving a collision that could have been av oided by a
swerving manoeuvre, an apportionment of 10% against the plaintiff was made. In the
said case, the court’s reasoning was that t he plaintiff’s slight delay or failure in
evading the collision was considered a contributing factor .
14. Having regard to the above, t he question to be considered by this court is
whether the plaintiff has succeeded 100% in proving the negligence of the insured
driver on the preponderance of probabilities.
15. On careful consider ation of all the facts and exercising discretion, failure by
the plaintiff to attempt to tr y a manoeuvre to avoid the collision , which was expected
of any reasonable driver in his position, contributed to the collision. In his own
testimony, he made no attempts whatsoever to avoid the collision, thereby slightly
contributing to the negligence, which should therefore attract an apportionment .
16. In the circumstances , the defendant is liable to pay 90% of the plaintiff's
proven damages.
17. In the result, the following order is made:
Order
[1] The Defendant i s liable for 90% of such loss as agreed or as proven by the
Plaintiff.
[2] The Defendant is ordered to pay the Plaintiff’s costs on High Court Scale B.
T J MAKGATE
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Plaintiff: Adv H Kriel instructed by Levin Tatanis Inc .
For the Respondent: Mr Sondlani, Road Accident Fund unit in the Office of the State Attorney, Johannesburg
Date of Hearing: 21 May 2025.
Date of Judgment: 26 May 2025.