IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NO: 5136/2022
(1) REPORTABLE:NO
(2) OF INTEREST TO OTHER JUDGES: YES
REVISED: YES
04/06/2025
DATE
In the matter between:
SKHUMBUZO MSIBI PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
This judgment was handed down electronically by circulation to the parties and/or parties'
representatives by email. The date and time for hand-down is deemed to be 04 June 2025
at 10:00.
JUDGMENT
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Mashile J
[1] This is a personal injury claim arising from a motor vehicle accident involving the
Plaintiff. The accident occurred on 9 March 2020 when an unknown vehicle ("insured
vehicle") driven by an unknown driver ("insured driver") left its path of travel and collided
with the Plaintiff who was on the side of an unknown street in Piet Retief. Believing that
the accident was caused by the negligent driving of the insured driver and that his injuries
were a result of the accident, the Plaintiff instituted this claim against the Defendant ("the
Fund").
[2] When the matter served before this Court, the parties applied to court in terms of
Uniform Rule of Court 33(4) that the issues of liability and quantum be determined
discretely. Having had regard to the parties' respective submissions on why it was
pragmatic to do so, I directed that the issues be so separated as contemplated in the rule.
In consequence of the separation of the issues, this Court is tasked to determine whether
it can find for the Plaintiff on the evidence levied before it. This is significant because the
only person who witnessed the accident did not testify.
[3] The instances concerning the way the insured driver was negligent are articulated
at paragraph 6 of the particulars of claim and are as follows:
"6. The accident was caused by the negligent driving of the driver of the insured motor
vehicle in one or more of the following respects:
6.1 he drove at an excessive speed in the circumstances
6.2 he failed to keep a proper look out
6.3 he failed to keep the vehicle driven by him under proper control
6.4 he failed to avoid the collision when by exercise of reasonable care he could and
should have done so
6.5 he failed to give any or adequate warning of his approach at a time when he could
and should have done so
6.6 he failed to pay due attention and regard to other road users and in particular the
Plaintiff when ought to have done so
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6. 7 he drove on incorrect lane." (sic)
[4] These allegations , without evidence positively confirming their occurrence, are not
sufficient to sustain this claim. Thus, the Plaintiff needed to take the stand, supported by
other witnesses or not, to elaborate. The Plaintiff's account of the accident pertains to
events prior to the accident and in fact, he admitted under oath that he did not see how
the collision happened. His friend, Mr Sibusiso Shongwe ("Mr Shongwe "), witnessed how
the accident happened but the Plaintiff elected not to call him to testify.
[5] In the circumstances, the Plaintiff will stand or fall by his evidence alone. His
testimony was that he was standing on the side of the road when he noticed a heavy
motor vehicle approach, indicating that it would be coming to a halt somewhere next to
where he stood. He lost interest in the heavy vehicle before it stopped and turned his
focus on his friend who was shopping near where he was. The next moment, he felt his
body encountering some object and he lost consciousness.
[6] He assumed that it ought to have been the heavy-duty motor vehicle that he
observed before the impact that collided with him. His suspicion was confirmed by
Mr Shongwe who told him that indeed it was the heavy duty motor vehicle that collided
with him and drove away. However, Mr Shongwe's evidence is clearly hearsay and
therefore not admissible . In short, the Plaintiff does not know how the accident occurred,
nor can he positively indicate that he collided with the heavy duty motor vehicle that
approached the spot where he stood shortly before the impact.
[7] These are the alleged facts on which I must determine whether there was any
negligent driving on the part of the insured driver, which caused the accident and
therefore, the resultant injuries of the Plaintiff. While assessing the Plaintiff's evidence, I
will decide the weight, if any, to give to the hearsay evidence of the Plaintiff concerning
Mr Shongwe. Related to the aforesaid is, should this Court make any adverse findings
against the Plaintiff for his failure to call this important witness, Mr Shongwe?
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[8] The evidence levied by the Plaintiff is inadequate to impute blame to the insured
driver. In view of his failure to call Mr Shongwe, this Court cannot be certain that the
injuries that he claims to have sustained were caused by the heavy duty motor vehicle
that is so shrouded in mystery. It must be born in mind that in the absence of a witness
stating that the Plaintiff indeed collided with the heavy duty motor vehicle that he saw
shortly before he was hit, the injuries could have been the result of any other unknown
incident, which this Court cannot speculate.
[9] The burden of proving that an injured person collided with the vehicle is more
onerous in the case of "hit-and-run " collision. The court was not furnished with ambulance
records, which would normally confirm that they conveyed a person from a particular
alleged scene of accident to a Hospital or Clinic. Nothing of the sort was provided here.
The medical personnel from the Hospital were not called to confirm that the injuries were
consistent with those of a motor vehicle accident.
[1 O] It is not without significance that the Road Accident Fund Act 56 of 1996, as
amended, requires that an injured person who neither knows the identity of the driver nor
the vehicle should, within 14 days of his discharge from Hospital or as soon as it is
practically possible after discharge from Hospital, compile an affidavit setting out the steps
he took to establish the identity of the driver. This is to reduce the possibility of fabricated
accidents that are intended to defraud the Fund.
[11] The next question that arises is, mindful that he did not know how the accident
happened, why would the Plaintiff not call Mr Shongwe to assist? Here the Court is left to
speculate because no answers were forthcoming from the Plaintiff. The possibility is that
Mr Shongwe , if he exists, refused to be part of these contrived facts or he is a fictional
character. The injuries were caused by some other event not motor vehicle accident
related. Failure to call Mr Shongwe in this case, in fact, should attract an adverse
inference that the Plaintiff deliberat ely refrained from calling him because he would
expose the hollowness in his evidence.
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[12] In the circumstances, I am unable to find for the Plaintiff, in consequence of which
I make the following order:
The claim is dismissed with costs.
Appearances
Counsel for the Plaintiff:
Instructed by:
C/O
Counsel for the Defendant:
Instructed by:
Date of Judgment: BA MASHILE
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION , MBOMBELA
Adv AZ Cassiem
TK Machitele Attorneys Inc
Meintjies & Khoza Inc
Adv V Mukwevho
The State Attorney, Mbombela
04 June 2025