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REPUBLIC OF SOUTH AFRICA






IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

CASE NO: 122402/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED : YES OR NO
DATE: 29/05/ 2025
SIGNATURE:

SHWALA ZITHULELE BETHUEL PLAINTIFF

And

THE ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

LEBALLO,AJ

Introduction

1. The default Judgement proceedings have always been one of the procedures
that our courts can be able to deal with matters in an expeditious manner and also in
a least expensive manner.1 This is one of the ways in which the basis the core basis
of the Ru les could be given effect to. It does not follow that while in default
proceedings that the court must just rubber stamp just about any submission or
evidence.

2. In Essential Judicial Reasoning,2 Justice Southwood discusses that active
management of a Tr ial to control the proceedings does not per se show impartiality,
makes a statement that

"A judge is not simply a "silent umpire" A Judge is not a mere umpire to
answer the questions 'How's that?" Lord Denning once said. Fairness of court
proceedings requ ires the trier to be actively involved in the management of
the trial, to control the proceedings to ensure that public and private resources
are not wasted, to point out where evidence is irrelevant and to refuse to listen
to irrelevant evidence. A supine approach towards litigation by judicial officers
is not justifiable either..."

3. In this matter the Plaintiff was allegedly involved in a motor vehicle accident
on 1 December 2018, along Bhuguza Reserve, Mahlathini, Kwa -Zulu Natal Province.

4. The Plai ntiff according to the Particulars of claim " was walking along the side
of the road when a blue Volkswagen Polo bearing registration letters and Numbers
N[...] driven by Mntukanyise Ernest Buthelezi, herein after referred to as the insured
driver. The pa rticulars of claim further alleges that the "The insured driver was
travelling at a high speed and lost control. As a result of the losing control of the
insured motor vehicle he collided with the Plaintiff ".

5. The plaintiff as a result of the alleged ac cident sustained injuries and instituted
action against the Road Accident Fund in the amount of R2 000 000.00. The Claim
was for the estimated medical expenses (S17 Undertaking), past loss of income for

1 Ncoweni v Bezuidenhout 1927 CPD 331; Erasmus - Superior Court Practice 81 - Rules of Court.
2 By BR Southwood (Justice Southwood) at page 13.
R200 000.00, for future Loss of earnings he claimed for the amount of R1 000
000.00 and for the non -pecuniary loss he claimed for R800 000.00.

6. The Road Accident Fund was served with the summons on the 29th of
November 2023 and through the offices of the State Attorney representative they
filed their notice of intention to defend on the 4th of June 2024. The Road Acc ident
fund then failed to file their plea and they were subsequently barred on the 05 July
2024.

7. The matter was then set down for the 10 April 2025 and it came to me during
the last week of recess. In the morning of the hearing Counsel for the Applicant
called the matter and requested a stand down indicating that they are attempting to
settle the matter and sort some few things. The matter was then stood down.

8. Counsel for the Applicant later came and called the matter and indicated that
they are ready to proceed as the offer made was not acceptable. Counsel had not
filled heads of argument and as directed in my practice directive, but I did not take
issue with that aspect, he then indicated that there is a Rule 38(2) application but will
not proceed in regards to that, but will only pursue the issue of merits and he will call
the Plaintiff to testify.

9. I indicated that he may proceed to call the witness if he is ready and certain
that this is how he seeks to proceed. The witness (Mr Shwala) was sworn in and his
counsel began to lead questions to him pertaining to the accident.

The evidence of the plaintiff

10. In his testimony, the Plaintiff indicated that on the 1 December 2018, he was
leaving from his home where there was a traditional ceremony afte r which he
decided to leave. He indicated that the street does not have a name. However, he
continued to testify that he was walking along the pavement on that road, on the right
hand side facing oncoming traffic.

11. The Plaintiff continued further to i ndicate that from a little afar he could be
able to see an accident that had occurred on the road. I enquired from him as to
what could be estimated distance from where he could see that accident, he
indicated that from the court room we were at (8B), i t could at the end of the street,
"Madiba Street" and estimate that could then be about 80m to 100m in my view. He
continued to indicate that he could be able to see the accident from that distance but
all of a sudden he was on the floor and woke up and di d not see the vehicle that hit
him.

12. I enquired from the Plaintiff if he was facing oncoming traffic, how did he not
see the vehicle that collided with him? He indicated that he was on the side of the
road. It had not been made clear whether the vehicl e had veered off the road and
collided with him where he was. I further continued to inquire from the Plaintiff what
time it was, he indicated that he could not recall but the sun had just set down. Since
his counsel also never enquired whether he was wear ing colorful clothing and also
enquired if he was wearing reflective clothing or colorful clothing. The Plaintiff
indicated that he was wearing a bluish clothing.

13. The court was faced with a situation where it could not be able to make up
what could ha ve transpired as he said that he did not see the vehicle. I then
proceeded to ask if he could have an idea where the vehicle was coming from and
the Plaintiff testified that the vehicle was coming from the accident he had referred to
earlier. As to how he knows that part he indicated that that it is what he was told by
his sister.

14. Since the court was not satisfied with this evidence, I enquired from the
Plaintiff whether he was ever told about an affidavit that is called a section 19(f)
affidavit. He i ndicated that he did not know what it was, as his attorneys had given
him a lot of documents to sign.

15. I then requested that his counsel show him a section 19(f) affidavit, which was
shown to him and indicated to him that towards the end of that documen t, there is a
signature where it is written deponent, after it was shown to him the court enquired
whether he does know the signature on that affidavit. The Plaintiff confirmed that he
did know the signature and that it is his signature.

16. Just when th e court was enquiring from the Plaintiff whether he knows the
contents of that affidavit or what is contained in there, the Plaintiff 's counsel objected
and indicated that the Plaintiff already indicated that he did not know what is section
19(f) affidavi t. Notwithstanding the fact that the court had indicated to him that
document is a section 19(f) affidavit. Counsel for the Plaintiff continued to state, what
will be the purpose of the question and then proceeded to indicate that section 19(f)
affidavit i s a technical document for the witness.

17. The conduct of the counsel was startling, in that he first objects to the court
that the court should not enquire from the witness about the section 19(f) affidavit.
This document is one of the first documents th at is required when one prosecutes
their claim against the Road Accident Fund. Secondly the document was discovered
by the Plaintiff's attorneys and formed part of the default proceeding. Thirdly, the
proceedings were at the default stage, wherein the cour t was provided with the
matters to go through via case -lines prior to the hearing.

18. Thus, if the court would have questions, the court would be entitled to ask any
question that is related to the matter. The conduct of objecting to the court asking
about the section 19 (f) affidavit is unheard of, also because this is one of the
documents required in the initial stages of lodging the claim. At some stage it was
uncertain what the Plaintiff's counsel was seeking to achieve in objecting to the
Honourable Court, it was as if the Counsel was expecting the court to be a " Silent
Empire "

19. When it was further explained to the witness what Section 19(f) documents
are by the court and that whether it was explained to the Plaintiff the content of
Section 19(f) affidavit when he appended his signature? Counsel then objected to
the interpret er indicating that the interpreter does not explain properly.

20. After a long debate I reverted back to the testimony the Plaintiff gave during
examination in chief. and for clarity I wanted to very if he was actually on the side of
the pavement facing oncoming, the plaintiff response was that " there were no
vehicles driving past, in front of him and that the vehicle in question came from the
accident point to his direction ".

21. I enquired further that since the Plaintiff indicated that the vehicle c ame from
the accident site, and he was facing oncoming traffic how did he see that the vehicle
was coming from the accident site, since he had indicated he does not know what
happened? The Plaintiff indicated that he was informed by those who were at the
accident scene and that there were many vehicles there.

22. During examination in chief there had not been a point where the Plaintiff
indicated that the vehicle that collided with him veered out of the road to collide with
him on the pavement. So I procee ded to enquire from him that the court is seized
with an OAR report, and whether he had at some stage explained his version to the
Police and that I just wanted to verify since in the OAR the indication is that the
accident occurred in the middle of the ro ad, and I know that there is no one to be
called pertaining to the OAR and that I cannot just ignore that issue that was glaring
on the OAR.

23. The Plaintiff confirmed that he did speak to the Police who came to his home
while recovering. I then explaine d to him that since they came, they wrote on the
OAR and I enquired whether he agrees or disagrees with the fact that they wrote that
the accident occurred in the middle of the road.

24. I enquired if the accident did not occur in the middle of the road as it is stated
and that it occurred outside. He answered and said "I was on the side but there was
a lot of vehicles in the vicinity". This was not a satisfactory answer, since he had
previously indicated that there were no vehicles passing by, and then I e nquired
whether he by implication meant the vehicle veered out of the road? He said that is
what happened. This aspect could not be taken further since the police were also not
called.

25. Emanating from my questions, the Plaintiff's counsel only asked o ne question,
the question was relating to his eyesight whether the Plaintiff wore spectacles and
the Plaintiff confirmed that his eyesight was perfect.

Analysis of the evidence

26. The Plaintiff's counsel then closed its case. He commenced by stating that the
evidence that we have is that of the Plaintiff and that there is not contradictory
evidence. The version of the Plaintiff succinctly, is that on the 1 December 2018 in
Ulundi, Kwa Zulu Natal, where there was a (ritual) function. After the function he
decided to walk home and he does not know the name of road but it's the main road
from one between the villages and that there was an accident which had happened
before. He could see the accident from afar. He was walking on the right side of that
road, fa cing oncoming traffic and there emerged a vehicle that collided into him.

27. According to the version of the Plaintiff he was on the right side and facing
oncoming traffic and there emerged a motor vehicle that collided with him outside the
yellow lane. Upon enquiry, the Plaintiff indicated that he did not see the vehicle but it
was coming from where the accident was. He further indicated that there were no
vehicles that were passing him by, and he could see the accident from about our
estimation 100 mete rs (this was done using the court room distance and Madiba
Street as an estimation). Upon being further questioned whether he saw the car, he
indicated that he did not see the car, but he was informed by his sister and others
that the vehicle was coming fr om where the accident had occurred. For verification of
this information, the Plaintiff and or his counsel did not call any witness to support.
Thus, this aspect amounts to hearsay evidence.

28. At the hearing, the counsel of the Plaintiff did not venture to take the Plaintiff
through the Section 19(f) affidavit to confirm whether the evidence that is contained
in the Section 19(f) affidavit accords with the evidence that he testified about. In fact,
when the court proceeded to do so, counsel for the Plaint iff objected and indicated
that the document is a technic al document and that th e Plaintiff also had indicated
that he does not know what a section 19(f) document is. Even after it was explained
to the Plaintiff what the section 19(f) affidavit is, the Plaintiff's counsel persisted that
the information was not read to the Plaintiff. I indicated to him that it was counsel's
obligation to do so, and he had failed in that regard.

29. The court was placed with the evidence which it was not satisfied with, f irstly it
seemed improbable that while the Plaintiff was walking on the right side of the road,
facing oncoming traffic and testified that there were no vehicles passing him from
where he could be able to see the accident, that a vehicle emerged and collid ed with
him "outside the yellow lane". What is more improbable is that he testified later that
he was told that the vehicle came from where an earlier accident had occurred. As
stated, there was no one called to testify and verify this aspect. Further, in his
examination in chief he indicated that he was walking to where the accident had
occurred and was going to pass there.

30. There is nowhere in his examination in chief where he indicated that the said
vehicle veered from the road, to collide with him, neither did his counsel ask him in
that regard. This aspect came only for the first time when I was asking the Plaintiff if
the vehicle veered out of the road to collide with and he then indicated there were
many vehicles on the road and only then indicate d that "that is what happened".

31. It is a long settled principle established as far as 1909, in the matter of
Siffman v Kriel3 where the court stated that:

"It does not follow, because evidence is not contradicted, 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 th e onus rests may be so improbable as not to discharge it"

32. In Shenker Br os v Bester ,4 the court referred, with approval, to both Siffman v
Kriel and Katz v Bloomfield and Keith5 and added:


3 1909 TS 538 at 543.
4 1952 (3) SA 664 (A) 670F -G.
5 1914 T.P .D. 379.
"Similarly, the circumstance that evidence is uncontradicted is no justification
for shutting one's eyes to the fact, if it be a fact, that is too vague and
contradictory to serve as proof of the question in issue."

33. Similarly, in the matter of Sigournay v Gi lbanks ,6 Schreiner JA stated:

"The onus was on the Plaintiff and, although the defendant could have
investigated the matter further by cross examination, it was necessary for the
court to consider whether, to quote De Villiers JP, in Un ion Market Agency Ltd
v Glick and Co 1927 OPD 285 at 288, the evidence of Mr. Forder on the point
was 'sufficiently substantial, detailed, reliable and satisfactory' to prove what
he deposed. Uncontradicted evidence is not necessarily acceptable evidence"

34. I understand that there are cases such as R v Jacobson & Levy ,7 where
Stratford JA stated that:

"Prima facie evidence in its more usual sense means a prima facie proof of an
issue the burden of proving which is upon the party giving that evidence. In
the absence of further evidence from the other side, the prima facie proof
becomes conclusive proof and the party giving it discharges the onus.
The plaintiff in this case had the onus of proving negligence on the part of the
insured driver on a balance o f probabilities. The defendant could then refute
the evidence by placing a different version, even one that is mutually
destructive to the version of the plaintiff, before the court. It would then be up
to the court, based on the evidence presented, to dec ide on a balance of
probabilities which version it will accept."

35. In casu the evidence before the court could not be construed as prima facie
proof, it is improbable that the Plaintiff could be facing oncoming traffic on the
pavement, while he could s ee an earlier accident and with no vehicle passing by that
a motor vehicle which he did not see, collides with him. Further the plaintiff's counsel
did not even allow for the court to even seek clarity pertaining to the section 19(f)

6 1960 (2) SA 552 (AD).
7 Ex parte the Minister of Justice: In re R v Jacobson and Levy 1931 AD 466 at 478 -479.
affidavit which could have at least assisted. Upon argument, after the closing of his
case, counsel made a submission that the evidence of the Plaintiff accords with that
of the section 19(f) affidavit.

36. This was puzzling since counsel had objected to the court enquiring about the
section 19(f) affidavit and he had indicated that the section 19(f) affidavit was a
technical document and did not explain what he meant in stating that it is a technical
document. In fact, when I invited him to address me on what he meant, he indicated
that " it is water under the bridge ". He then conceded that he did not take the witness
through that document and the reason was that it was the same a s with what the
witness (Plaintiff) testified about.

37. I enquired from the Plaintiff's counsel how do we know that for sure and he
indicated that ''He read the statement, so his submission is that the plaintiff managed
to prove its case on balance of pr obabilities" The Plaintiff's counsel could not have
been correct in this regard because the mere fact that he read the statement, does
not entail that it was also read into the record and further he was not the one
testifying. So, it did not help for him t o have just read the statement just for himself.
This is different and should not be conflated with Rule 38(2) application.

38. It is settled law that "Whatever the position may be concerning counsel's or
attorney's authority to bind the client by admissi on formally made and recorded in a
civil case, it seems undesirable that counsel's or attorney's opening of a case should
be accorded decisive effect in regard to proof of facts necessary to a party's case or
defence"8 In the matter of Standard bank of SA Ltd v Minister of Bantu Education ,9
the court continued and stated that "if such matters are to be used in coming to a
conclusion in a judgment, they must be set out therein and used, in the ordinary
course of events, with considerable circumspection." Thi s approach is reasonable
and it should also be applicable to matters where counsel makes submissions which
were not demonstrated or proved (my emphasis). As a result, his submission is
rejected.

8 See Herbstein & Van Winsen - The Civil Practice of High Courts of South Africa 5th Edition, Vol 1, at
page 891; Standard bank of South Africa LTD v Minister of Bantu Education 1966 (1) SA 229 at 242 -
243.
9 1966 (1) SA 229 at 242 H.

39. The burden of proof is on the Plaintiff; thus the factual basis must be
established as a matter of probability. In essence the probabilities in the case must
be such that on a preponderance, it is probable that the particular state of affairs
existed.10

40. Section 17(1)(a) of the Road Accident Fund provides that:

"Liability of Fund and Agents­
(1) The fund or an agent shall
(a) subject to this Act, in the case of a claim for compensation under this
section arising from the driving of a motor vehicle where the identity of the
owner or the drive thereof has been established;
(b) ......
be obliged to compensate any person (the third party) for any loss or damage
which the third party has suffered as a result of any bodily injury to himself or
herself or the death of or any bodily injury to any other person, caused by or
arising from the driving of a motor vehicle by any person at any place within
the republic, if the injury or death is due to the negligence or the other
wrongful act of the driver or of the owner of the motor vehicle or of his or
her employee in the performance of the employee's duties as employee... "
(emphasis added).

41. The evidence that we heard from the Plaintiff was that while facing oncoming
traffic, he initially indicated that the vehicle came from where there was an accident
and when I asked him whether he saw the vehicle the Plaintiff indicated that he did
not see the vehicle and, further testified that there were no vehicles passing by,

10 In Ocean Accident and Guar antee Corp v Kock 1963 (4) SA 147 (A) at 1598 -D Holmes JA stated:
"The degree of proof required in a court of law is not 'absolute science' but merely (this being a civil
case) a balance of probability; see West Rand Estates Ltd v New Zealand Insurance Co Ltd 1925 AD
245 at 263. As to the balancing of probabilities, I agree with the remarks of Selke J in Govan v
Skidmore 1952 (1) SA 732 (N) at 734 , namely:'...in finding facts or making inferences in a civil case, it
seems to me that one may. As Wigmore conv eys in his work on Evidence, 3rd ed, par 32, by
balancing probabilities select a conclusion which seems to be the more natural, or plausible,
conclusion from amongst several conce ivable ones, even though that conclusion be not the only
reasonable one." I need hardly add that "plausible" is not here used in its bad sense or of "specious",
but in the connotation which was conveyed by words such as acceptable, credible, suitable (Oxford
Dictionary, and Webster's international Dictionary)."
when he was asked whether he saw the vehicle he said " No I did not see it ". When
he was asked how he knew that the vehicle came from the accident which occurred
earlier because he initially had indicated that he did not know what happened, he
indicated that he was told later on, allegedly by others, including his sister. None of
them were called t o come and testify on his behalf.

42. On the available evidence, this court is not satisfied that the bodily injuries
that the plaintiff suffered were due to the negligence of the driver of a motor vehicle.
On his own version he did not see the vehicle, a lthough he was on the right side of
the pavement, allegedly outside the road, facing oncoming traffic and
notwithstanding the fact that he could see the previous accident from afar, he stated
that there were no vehicles passing which meant that he was awar e of the activities
on the road. There was no evidence of the sketch plan presented. The section 19(f)
affidavit was never presented and relied on by the Plaintiff and in fact, the Plaintiff's
counsel objected to it being referred to.

43. In the matter of Ninteretse v RAF ,11 Raulinga J indicated that "...the plaintiff
bears the onus to prove on a balance of probabilities that the insured driver was
negligent and that the negligence was the cause of the collision from which he
sustained the bodily injuries. Even in the instance where the defendant has not
tendered evidence to rebut the evidentiary burden of the prima facie case presented
by the plaintiff in this case, the plaintiff may not succeed with his claim depending on
the nature and weight of the evid ence so tendered."

44. In reference to Siffman v Kriel ,12 I have already referred to what Innes CJ
stated that:

"It does not follow, because evidence is uncontradicted, that therefor e it is
true... The story told by the person on whom the onus rest may be so
improbable as to not discharge it. Further the appellate division in the matter
of Nelson v Marich13 as per Centlives CJ at 149A -D stated:

11 [2018] ZAGPPHC 493 (2 February 2018) at para 28.
12 1909 TS 538.
13 1952 (3) SA 140 (A).

'The fact that there was no evidence to contradict the evidence given by the
defendant does not mean that the Court is bound to accept the defendant's
evidence."'

45. Rule 39(1) provides that the Plaintiff may prove his claim so far as the burden
of proof lies upon him and judgement shall be g iven accordingly. In casu , it is this
court's view that the plaintiff has not succeeded in discharging this onus and the
court is unable to come to a conclusion.

46. In circumstances where the court is faced with insufficient evidence to find in
favour of the Plaintiff, an absolution from the instance is therefore warranted. This
court is not satisfied with the sufficiency of the evidence of the Plaintiff and it is
consequently granting an absolution from the instance.

Order

47. The following order is the refore made:

1. Absolution from the instance is granted.
2. No cost order is made as the matter is undefended.



LT LEBALLO
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA


FOR THE PLAINTIFF: COUNSEL'S NAME WITHHELD
FOR THE DEFENDANT: NO APPEARANCE

DATE OF HEARING: 10 APRIL 2025
DATE OF JUDGEMENT: 29 MAY 2025