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
GAUTENG DIVISION, PRETORIA
CASE NO: 13607/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE : 30/06/2025
SIGNATURE
In the matter between:
NYAWO, NOXOLO PRUDENCE Plaintiff
and
ROAD ACCIDENT FUND Defendant
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PIENAAR AJ
INTRODUCTION
1. The Plaintiff instituted an action against the Road Accident Fund for injuries sustained
by her in a motor vehicle accident that occurred on 19 April 2021.
2. In terms of the amended particulars of claim dated 14 January 2025, on 19th of April
2021 at or near Ematshobeni area along N1 road, Pongola, a collision occurred when
motor vehicle with registration numbers and letters H[...] when suddenly a motor vehicle
bearing unknown registration numbers driven by insured driver encroached onto
Plaintiff’s lane of travel forcing her off the road.
3. The notice of set down was served on the defendant on 06 December 2024.
4. Plaintiff served a notice of bar on the defendant on 26 April 2024.
5. The Plaintiff sought to proceed on merits and quantum. The Plaintiff and a witness
both testified on the merits of the case.
6. The Plaintiff’s brought an application in terms of Rule 38(2) of the Uniform Rules of
Court for the expert reports and affidavits to be admitted into evidence. Havenga v
Parker 1993 (3) SA 724 (T), confirmed by the Supreme Court of Appeal in Madibeng
Local Municipality v Public Investment Corporation 2018 (6) SA 55 (SCA), found it is
permissible to place expert evidence before the Court by way of affidavits in terms of
Rule 38(2). The Rule 38(2) application was granted.
7. It must be noted that even though the Rule 38(2) application was granted, this court
must still be satisfied, after considering all the evidence, that the Plaintiff has a valid
claim. By admitting the expert affidavits without viva voce evidence, this Court is not
bound to accept the evidence presented for the purpose of granting default judgment.
8. The Fund did not admit the RAF 4 serious injury assessment of the Plaintiff .
Therefore, the issue of General Damages is postponed sine die.
MERITS
9. The plaintiff testified that at the time of the accident she was driving from Petersburg
to Mbombela. On the way to Piet Retief, there were two motor vehicles. These two
motor vehicles tried to overtake. The truck drove to her side of the road. That is when I
lost control and the car start rolling. Plaintiff’s Counsel, Adv Leopeng asked her about
the OAR report, according to her the OAR report is a lie. There was a passenger in the
vehicle.
10. The witness, Ms Nomboso testified, that the accident date is 19 April 2021. She was
seated in the back seat with the baby. She realized that two motor vehicles came from
the opposite site of the road to their side of the road. The driver swerved and the vehicle
overturned.
11. The merits evident before me is; the OAR Report, the claimant’s section 19 (f)
affidavit confirming the accident, and the ID copy of the claimant.
12. The Court now turns to the Plaintiff’s Affidavit. The Plaintiff states in her statutory
affidavit that she was a driver of a motor vehicle bearing registration numbers and
letters H[...] on or about 18th October 2021, when suddenly an insured motor vehicle
encroached onto their lane of travel forcing her to go off the road. The affidavit was
signed on 31st July 2021 and 'commissioned' in Pretoria . It indicates that it is signed
and sworn before Luvo King Attorneys (commissioner of oaths) on 31st July 2021, and
that the deponent knows and understand the contents of this affidavit and has no
objection to taking the prescribed oath and consider same to be binding upon her
conscience.
13. It is evident from the preceding paragraph that the affidavit was commissioned prior
to the motor vehicle accident. As such, the court cannot accept the contents of an
affidavit sworn under oath before the occurrence of the event as accurate.
THE LAW
14. The State President has, in terms of section 10 of the Justices of the Peace and
Commissioners of Oaths Act, 1963 (Act 16 of 1963), been pleased to make the
following regulations —
1.
(1) An oath is administered by causing the deponent to utter the following words: “I
swear that the contents of this declaration are true, so help me God”.
(2) An affirmation is administered by causing the deponent to utter the following words:
“I truly affirm that the contents of this declaration are true”.
2.
(1) Before a commissioner of oaths administers to any person the oath or affirmation
prescribed by regulation 1 he shall ask the deponent —
(a) whether he knows and understands the contents of the declaration;
(b) whether he has any objection to taking the prescribed oath; and
(c) whether he considers the prescribed oath to be binding on his conscience.
(2) If the deponent acknowledges that he knows and understands the contents of the
declaration and informs the commissioner of oaths that he does not have any objection
to taking the oath and that he considers it to be binding on his conscience the
commissioner of oaths shall administer the oath prescribed by regulation 1(1).
(3) If the deponent acknowledges that he knows and understands the contents of the
declaration but objects to taking the oath or informs the commissioner of oaths that he
does not consider the oath to be binding on his conscience the commissioner of oaths
shall administer the affirmation prescribed by regulation 1(2).
15. The purpose of a judge who is called upon to interpret a statute or other document,
is, therefore, to ascertain the objective meaning of the words used, within the context of
the document as a whole, and given the purpose of the document.
16. In light of all the above, this Court is not willing to exercise its discretion and grant
default judgment against the RAF. In the circumstances, this Court, in the interests of
justice, is also not prepared to dismiss the action or grant an absolution from the
instance.
17. In summary, the granting of a default judgment involves an exercise of discretion.
ORDER
18. For all the above reasons, I make the following order:
1. The application for default judgment is refused.
2. There is no order as to costs.
PIENAAR, M
ACTING JUDGE OF HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing : 02 April 2025
Date of judgment : 30 June 2025
For the Applicant : Adv Leopeng
Instructed by : N NKala Attorneys Inc
For the Defendant : Road Accident Fund
No appearance
Link no: RAF REF: IS2887899