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
(EASTERN CAPE DIVISION: MTHATHA)
CASE NO: CC 3145 / 2022
In the matter between
LUYANDA MDA PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
_____________________________________________________ ______________
NGOQO AJ
[1] This is an action for damages arising out of a motor vehicle accident that
occurred on the 19th February 2021 on the N2 road near Jojweni Location between
Mthatha and Qumbu, Eastern Cape. A white Isuzu bakkie with regist ration number
H[...] driven by the plaintiff collided with a grey Toyota bakkie with registration
number N[...] , driven by an insured driver who passed on immediately after the
collision.
[2] At the beginning of the trial the p arties agreed to separate the issues relating to
merits from the issues relating to quantum in terms of Rule 33(4).1 That then left the
court with only one issue for determination; ‘whether the insured driver was the sole
cause of the accident or whether there was any contributory negligence from the
plaintiff.’
[3] It is trite law that for the plaintiff to succeed with his claim against the defendant
he must establish 1% negligence against the insured driver. Once the plaintiff proves
the occurrence giving rise to an inference of negligence on the insured driver, the
latter must produce evidence to the contrary or take a risk that judgment is given
against him.
[4] The plaintiff testified that he instituted a claim against the Road Accident Fund
(RAF). He testified that during the morning of the 19th February 2021 at around 05:00
to 06:00, he was driving on N2 from Tsolo to Mthatha, taking a child to school. He
was with Nceba who was sitting in the front seat and a child who was sitting in the
back seat. He was driving a white Isuzu bakkie with registration number H[...] .
[5] It was misty and the roa d surface was wet. As he passed the first turn near
Jojweni, going down approaching the second turn, a silver grey VVTI Toyota bakkie
appeared approaching him from the front . However, due to the fact that it was misty,
he was not able to see it while at a distance. This vehicle was encroaching on his
lane, straddlin g the middle lane and the plaintiff’s lane.
[6] The plaintiff testified further that on his left, there were rails. He therefore could
not swerve to his left to avoid the collision between his vehicle and that of the
insured driver. As the vehicle of the insured driver was already too close and partly
on his lane when he spotted it, the only option he had was to brake. However, the
vehicles still collided with each other.
[7] The vehicle of the plaintiff was hit on the front, on the driver’s side. After the
collision the plaintiff’s vehicle turned , crossed the road in the middle of the road,
1 Uniform Rules of Court (Updated to 20 September 2024)
which is the fast lane on the side of the on -coming traffic. The Toyota bakkie which
had collided with his vehicle went around his vehic le and ended up on top of the rails
which were on the plaintiff’s left before the collision.
[8] During cross -examination by Mr. Thaver, the plaintiff stuck by his version and
did not contradict himself. He testified during cros s-examination that the incident
happened fast and on his side of the road. He testified that his vehicle did not stop
immediately after he stepped on the brakes and ended up colliding with the insured
driver’s vehicle on his side of the road. Subsequently, his vehicle’s fender and door
on the right -hand side were damaged.
[9] No further evidence was adduced by the plaintiff. At this stage the
representative of the defendant applied for an absolution from the instance. Mr.
Thaver cited the absence of documentary proof and absence of objective evidence
as reasons for th is application. This application was opposed by the legal
representative of the plaintiff, Mr. Badli. He submitted that there was enough
evidence to substantiate the claim of the plaintiff o n record. It suffices to say that the
application was dismissed by this court as having no merit.
[10] The defendant applied to open its case and to adduce the evidence of
Mkhuseli Mcdonald Khuthu. Mr. Thaver in support of his application submitted that
the plaintiff had provided the defendant with documents, during the discovery
process, which the plaintiff was now not using, placing the defendant at a
disadvantage. Mr. Badli raised an objection to that stating that he did not know the
nature of the evidence to be called and whether cal ling the person will comply with
rule 36 (9) and (10) of the uniform rules.2
[11] Rule 36 (10) (a) provides that:
‘No person shall, save with the leave of the court or the consent of all the
parties, be enti tled to tender any plan, diagram, model, or photograph unless
such person shall not more than 60 days after the close of the pleadings have
2. Supra
delivered a notice stating an intention to do so, offering inspection of such
plan, diagram, model or photograph and requiring the party receiving notice to
admit the same within 10 days after receipt of the notice.’
[12] Having considered the provisions of this rule and having considered the
argument by Mr. Thaver, this court decided that there is merit in Mr. Thaver’s
argument. This court also decided that in the interest of justice it would be unfair to
deprive the defendant of the opportunity to adduce evidence in support of its case.
This court decided to allow the defendant to call its witness as the plaintiff would not
suffer any prejudice which cannot be addressed at a later stage.
[13] Mr. Khuthu testifying for the defendant told the court that he is an employee of
RAF. At the time of his testimony he had been working for RAF for three years as a
claims -investiga tor. Prior to joining RAF, he was employed by the Department of
Transport for ten years as an investigator.
[14] He testified that he was given an instruction to investigate the merits of the
plaintiff’s claim. He coul d not remember who gave him the instruction. He testified
that he was given documents in a form of a file which also contained a police docket
with statements of police who attended the accident scene, plaintiff’s statem ent, an
accident report, hospital records and correspondence from the handler.
[15] Mr. Khuthu further testified that he verified the authenticity of the police docket
and the police station from which it came. The docket was confirmed to be correct.
He subsequently read the statement of the plaintiff which was a very short warning
statement. The purpose was to establish whether an investigating officer had
questioned the plaintiff and to find out where and when the statement was taken. He
was able to establish that the plaintiff’s statement was taken a couple of months after
the accident.
[16] Mr. Khuthu further testified that he subsequently consulted with the plaintiff
whom he asked to clarify his statement. According to Mr. Khuthu he was told by the
plaintiff that his vehicle was on its lane. The other driver straddled the lanes and
moved to the plaintiff’s lane. The plaintiff further told him that he could not control his
vehicle as he was close to the barrie r line. He further testified that the plaintiff told
him that he bumped the deceased insured driver’s vehicle on the fender and driver’s
door. Mr. Khuthu further referred to the police sketch plan which he later conceded
was inaccurate.
[17] In his argument before judgment, Mr. Badli submitted that what the court had to
ask itself is whether, on a balance of probabilities the plaintiff has succeeded in
proving that the defendant is liable for all the damages that he has suffered as a
result of the collision between his vehicle and that of the deceased insured driver. He
further submitted that there was no evidence on record to suggest contributory
negligen ce on the part of the plaintiff. He asked the court to find in favor of the
plaintiff.
[18] Arguing for the dismissal of the plaintiff’s claim or apportionment of damages,
Mr. Thaver submitted that the plaintiff’s claim was fraug ht with inconsistencies. He
submitted that the plaintiff was unable to recall the lanes upon which each party was
driving. He submitted that the plaintiff contradicted himself as to where the collision
would have happened and gave different versions throughout his testimony. Mr.
Thaver also relied on the sketch plan of the incident which , he submitted, proved that
the plaintiff was an unreliable witness. He asked the court to consider an
apportionment of damages in accordance with the Apportionment of Dama ges Act.3
In this regard, Mr. Thaver submitted that the plaintiff had testified that he had seen
the insured driver who had encroached on his lane. He tried to brake but could not
stop his vehicle nor the collision from occurring. There was no indication whether the
plaintiff had flashed his lights or hooted at the insured driver to get his attention.
[19] The plaintiff gave his evidence in a clear and chronological manner. As far as
this Court is concerned, he gave his evidence in a such a way that i t was easy for
everyone to understand what had happene d immediately before and after the
collision. He was consistent about the fact that the collision occurred on his side of
the road. At no point did he seem to be clutching at straws about what happened that
day.
3 Act 34 of 1956
[20] The same cannot be said about the evidence of the defence witness. Firstly,
he could not tell the Court who instructed him to investigate how the accident
occurred. Secondly, he was not at the scene of the accident when it occurred or
immediately thereafter. Thirdly, he relied on a sketch -plan compiled by the police
which he conceded was inaccurate. Fourthly, his whole evidence is based on
hearsay, save for what he alleges he was told by the plaintiff. Lastly, the defence
witness, more than anything, seems to have misunderstood the plaintiff with regard
to the damages that were caused to the plaintiff’s vehicle.
[21] During cross -examination the plaintiff testified that his vehicle was damaged in
the front. Its fender and door on the driver’s side were damaged. This issue was not
in any way challenged by Mr. Thaver during cross -examination of the plaintiff. It is,
therefore, unfathomable that the plaintiff would have told Mr. Khuthu anything in the
contrary. The less I say about Mr. Khuthu‘s evidence, the better it is for everyone,
particularly the defendant’s case.
[22] The argument by Mr. Thaver that the plaintiff’s evid ence is fraught with
inconsistencies has no factual basis. This Court holds a different view as it can be
seen herein above. The argument that the plaintiff ought to have hooted, flickered his
lights and stopped in time is also not plausible. It has to be remembered that the
weather was bad on the day and misty. In his uncontested evidence, the plaintiff did
testify that he could only see the oncoming vehicle when it was already too close to
him, leaving him less or no room to react timeously and to take precautionary
measures to avoid the collision. It would be an absurdity for this court to expect of
any driver to handle his vehicle perfectly while driving under imperfect conditions.
What is expected, however, is that the driver handles his vehicle with caution,
mindful that any negligence or recklessness on his part might affect other road users
or even result in death.
[23] Section 16 of the Civil Proceedings Act4 provides that judgment may be given
in any civil procee dings on the evidence of any single competent and credible
4 Act 25 of 1965
witness. The Court in the case of Bravemen Madlala v RAF5 dealing with the issue
of a credible evidence said it is evidence that is likely to be believed. The court
further went on to say that a credible witness is a witness who is believed to be
truthful. However, it is still up to this Court to assess the evidence of the plaintiff in
order to weigh the probabilities.
[24] In the case of Neuyebauer & Co LTD v Bodiker & Co (SA)6 Solomon JA
dealing with the duty of a defendant in a civil matter said the following in his dictum;
‘The duty of the defendant then is to set forth his defence with sufficient
precision to enabl e the plaintiff to ascertain what the defence is.’
[25] There can be no doubt in anybody’s mind at this stage that before this court,
the only credible and reliable version of events that unfolded on the 19th February
2021 is that told by the plaintiff and this court accepts it. Subsequently, the court
finds the following to be proven facts:
a) That on the 19 February 2021, while taking a child to school at about
05:00 -06:00, the plaintiff’s vehicle collided with an insured d river’s vehicle on
the plaintiff’s side of the road.
b) Owing to misty weather, the plaintiff could not see the insured driver’s
vehicle approaching in time.
c) The insured driver’s vehicle was straddling the lanes and encroaching
on the plaintiff’s lane.
d) At the time when the plaintiff saw the insured driver’s vehicle it was
already too late and the only thing that he could do was to brake.
e) Owing to weather conditions, his vehicle did not stop immediately and
ended up colliding with the insured driver’s vehicle o n the plaintiff’s side of the
road.
[26] I am satisfied, therefore, that the plaintiff has discharged the onus that rested
on him. I am satisfied that the insured driver was the sole cause of the accident.
5 [2025] ZAGPPHC 153
6 1925 AD 316 @ 321
[27] In terms of section 17 (1) (a) and (b) of the Road Accident Fund Act7 (the Act)
and regulations promulgated thereunder, the defendant is liable to compensate
victims of motor vehicle accidents arising from the driving of a motor vehicle where
the identity of the owner or the driver has been established and or subject to any
regulation made under section 26 of the Act where the identity of neither the owner
nor the driver thereof can be established.
[28] Consequently, I make the following orders:
a) The de fendant is held liable for all damages suffered by the plaintiff as
a result of a motor vehicle accident that occurred on the 19th February 2021
on N2 road near Jojweni Location between Mthatha and Qumbu, Eastern
Cape.
b) The defendant to pay costs of trial o n Scale B.
______________________
NGOQO AJ
JUDGE OF THE HIGH COURT
Heard on: 19 MAY 2025
Judgment handed down on: 2 8 MAY 2025
Plaintiff’s Counsel: Z BADLI
MADALA CHAMBERS
MTHATHA
Defendant’s Counsel: MR THAVER
Instructed by: STATE ATTORNEY
94 SISSON STREET
7 Act 56 of 1996
FORT GALE
MTHATHA