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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 31809/22
In the matter between:
EMILE KAREL MEYER Plaintiff
and
ROAD ACCIDENT FUND Defendant
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 04 July 2025 .
Summary: Action against the Road Accident Fund (RAF) . Plaintiff bears the
onus to prove negligent driving of a motor vehicle as contemplated in section
17(1)(b) of the Road Accident Fund Act, 56 of 1996 (RAFA). Where a Court is not
satisfied with the evidence of the plaintiff, a Court may refuse to grant de fault
judgment. The evidence of the plaintiff must be credible. This Court is not
satisfied that the injuries sustained by the Plaintiff arose out of the negligent (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
______________ ______ _
DATE SIGNATURE
4 July 2025
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driving of the unide ntified driver of the alleged vehicle. Accordingly, the plaintiff
has failed to establish a claim against the RAF as contemplated in section
17(1)( b) of RAFA. Failure to enter appearance to defend timeously does not
amount to an irregular step. Held: (1 ) The application for default judgment is
refused. Held: (2) The re is no order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1] For a plaintiff to succeed with a claim for compensation against the RAF, the
requirements of section 17(1) of the RAFA must be met. Pertinent to the present
application for default judgment , the provisions of section 17(1)(b) ought to have
been established. It must be stated upfront that those requirements are:
(a) Driving of a motor vehicle where the identity of neither the owner nor the
driver thereof has been established.
(b) Any bodily injury to any other person, caused by or arising from the driving of
a motor vehicle, if the injury is due to the negligence or other wrongful
act of the driver or the owner of the motor vehicle.
[2] A default judgment is a judgment authorised by section 23 of the Superior Courts
Act1, to be granted in the circumstances prescribed in the rules. Rule 31(2) (a) of
the Uniform Rules of Court prescribes that after hearing evidence a Court in the
exercise of its discretion may grant judgment against the defendant or make such
order as it deems fit. Section 16 of the Civil Proceedings Evidence Act (CPEA)2
provides that judgment may be given in any civil proceedings on the evidence of
any single competent and credible witness .
1 Act 10 of 2013 as amended.
2 Act 25 of 1965 as amended.
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[3] Having said that, before this Court serves an application for a default judgment
against the RAF after its failure to enter notice to defend timeously. It was
intimated that the plaintiff shall be following the provisions of rule 30 to set aside
the belated notice of intention to defend since the notice allegedly constitutes an
irregular step. The plaintiff sou ght to employ the provisions of section 34(2) of the
CPEA for the admission of statements as evidence. As at the time of the hearing
of the default j udgment application, the contemplated rule 30 procedure was not
invoked as yet .
Factual matrix and evidence
[4] The plaintiff, Mr Emile Karel Meyer (Mr Meyer) sustained bodily injuries on 16
December 2017. At that time Mr Meyer was a driver of a Tuk -Tuk. According to a
statement admitted into evidence in terms of section 34(2) of the CPEA, deposed
to on 6 December 2019, the testimony of Mr Meyer was the following:
“I was driving in Charles Layds Street in Eersterus direction towards Eersterus.
I was driving in the left lane. A grey Mercedes Benz, (the further details which
are unknown to me), came from the front, and swerved into my lane (I believe
she tried to avoi d a pothole in the road, on her side of the road). As a result, I
then swerved to the left to avoid a collision, and I then lost control of the tuk -
tuk vehicle and overturned the vehicle.”
[5] For reasons that are not altogether clear, Mr Meyer decided to report the accident
three weeks after the accident. Not only did Mr Meyer report the accident after
three weeks, but he also sought medical attention almost 5 hours after the
accident. He was attended to by the emergency centre of Mamelodi Hospital at
around 17:5 9. When he personally reported at the hospital, he was stable and
had no obvious blood on his clothes. He presented with swollen tender left ankle
with abrasions over medial and lateral malleolus. The x -ray performed did not
reveal any fracture. He was treated with Panadol and Brufen.
[6] On 27 November 2019, LHI Attorneys lodged a claim with the RAF on behalf of
Mr Meyer. The lodgement letter was not accompanied by an Accident Report
(AR), even though the accident was reported in January 2018. Eight years later,
on 5 February 2025, Mr Meyer reported the accident afresh at Eersterus Police
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station. According to the AR report completed on 5 February 2025, the accident
allegedly happened at 15h30 on 16 December 2017.
[7] It is unclear whether the RAF repudiated the claim or not. However, on 14 June
2022, Mr Meyer issued summons against the RAF. The RAF belatedly, as it is
customary, entered appearance to defend outside the prescribed period.
Consequently, Mr Meyer applied for a default judgment. The application emerged
before this Court on 10 June 2025. After hearing submissions from counsel for
Mr Meyer, a judgment was reserved.
Evaluation
[8] This being a default judgment, this Court must be satisfied that credible evidence
was tendered to prove on the preponderance of probabilities that the bodily
injuries sustained by Mr Meyer was due to the negligent driving of a motor vehicle
by an unidentified driver. On Mr Meyer’s own evidence, he sustained bodily
injuries after he lost control of the Tuk -Tuk and rolled it . As to how and why he
lost control, this Court has not been appraised. On his version, Mr Meyer avoided
colliding with the Mercedes Ben z. Having successfully done so, he for unknown
reasons lost control of the Tuk -Tuk. This Court is not satisfied that there was any
credible evidence that the injuries sustained by Mr Meyer arose from the
negligent driving by the driver of the Mercedes Benz . In due course, this Court
shall revert to other concerns it harbours about the granting of the default
judgment sought by Mr Meyer. This Court first need to briefly deal with the
question whether the late delivery of notice of intention to defend constit utes an
irregular step within the contemplation of rule 30 of the Uniform Rules of Court.
Is late delivery of an intention to defend an irregular step?
[9] Rule 19(1) provides that the defendant is allowed 10 days after service of
summons to deliver a notice of intention to defend. Rule 31(2) entitles a plaintiff
to apply for default judgment in the event the defendant defaults in the delivery
of a notice of intention to defend. Rule 30(1) deals with irregular proceedings.
Entering an appearance to defend is not an irregular step after service of a
summons. In fact, it is an expected step in terms of the rules. Rule 30A deals
with non -compliance with rules. En tering an appearance to defend after the 10
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days period amounts to a non -compliance with the Rules, namely rule 19(1)
regarding the prescribed period .
[10] Rule 27(1) suggests that litigating parties may agree on the extension of any time
prescribed by the rules failing which the Court may upon application and on good
cause shown make an order extending or abridging any time prescribed by the
Rules. In my view, the late delivery of an appearance to defend only means that
the plaintiff is opportuned to apply for default judgment and not invoke the rule
30 procedure. Rule 30 is aimed at an irregular as opposed to late step. This Court
is unable to agree with any view that a late delivery of an appearance to defend
amounts to an irregular step within the contemplation of rule 30. That view is at
odds with the provisions of rule 27(1) where provision is made for an extension
of time periods. It seems incongruent to contend that something that is
extendable or abridgeable by agreement or Court order would be seen as an
irregular step. Additionally, rule 19(5) specifically provides that notice of intention
to defend may be delivered even after the expiration of the time before the
granting of a default judgment.
[11] Accordingly, in my considered view, it would have been a worthless exercise for
Mr Meyer to have invoked the provisions of rule 30. Allied to th e issue of irregular
step or not, is the question whether a Court should be satisfied to grant default
judgment in the face of a late deliver ed notice of intention to defend. Since this
issue did not arise before me, in passing, this Court takes a view that the granting
of a default judgment in those circumstances will be at odds with section 34 of
the Constitution.
Other concerns with regard to the granting of a default judgment .
[12] Over and above the fact that this Court is not satisfied that there exists credible
evidence to prove any negligence on the part of the unidentified driver, this Court
is doubtful about the validity of the claim. It has been long held that in instances
where the driver or owner is unidentified, the possibility of fraudulent claims is
greater. It is concerning that Mr Meyer sought medical attention almo st 5 hours
after the accident. When he walked in at the hospital, his clothes were not
bloodstained. He was not brought to the hospital by an ambulance or by any
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person. The hospital records reveals that he walked in. He reported to the
hospital staff that he was involved in a motorbike accident + - 5 hours ago. He
arrived at the hospital at 17h59. According to the re -issued accident report 8
years later, the accident happened at 15h30. Regard being had to the a rrival
time, it is apparent that he visited the hospital two and half hours after the
accident.
[13] Therefore, this Court is not satisfied that it should exercise its discretion and grant
judgment by default. It must be emphasised that a default judgment is not granted
simply on the basis that the defendant does not have a defence in law, but it is
one granted in terms of the rules of Court.
[14] Before this Court concludes, it is necessary to return to the negligence issue. Mr
Meyer led no evidence as to why he lost control of the Tuk -Tuk. This being a
different question from that of why he opted to swerve. On his uncontested
version he did so in order to avoid a collision with the Mercedes Benz vehicle
which had swerved into his lane of travel. Nevertheless, a driver of a motor
vehicle is under a duty to take reasonable care for the safety of other traffic on
the road to avoid collision. This duty involves taking all reasonable measures to
avoid collisi on. Once a possibility of a danger emerging is reasonably apparent,
and no precautions are taken by that driver, then the driver is negligent
notwithstanding that the other driver or road user is in breach of some traffic
regulations or even negligent.3 Had Mr Meyer not lost control and rolled the Tuk -
Tuk (an act of negligence) he would not have sustained bodily injuries. Therefore,
the bodily injuries he sustained were because of his own negligence and not the
negligence on the part of the driver of the Mercedes Benz.
[15] On his own version, the Mercedes Benz did not push , in the sense of making
physical contact, the Tuk -Tuk out of its lane of travel. Mr Meyer himself swerved,
and the swerving made him loose control and rolled the Tuk -Tuk. As to why he
did not simply stop the Tuk -Tuk as opposed to swerving, this Court is non the
wiser. Whether it was opportune for him to perform a swerving manoeuvre , this
Court is in the dark. In the circumstances, on the available evidence, it is
3 See Paulo Kato vs Uganda Transport Corporation (1975) HCB.
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improbable that the driver of the Mercedes Benz was negligent. On Mr Meyer’s
own version, the driver was avoiding a pothole. This suggests that Mr Meyer had
an opportunity to observe a pothole avoidance manoeuvre . As to why he did not
take safety precautions, this Court remains in the dark.
Conclusions
[16] In summary, the late filing of a notice to defend does not constitute an irregular
step. On the available evidence, this Court is not satisfied that the injuries
sustained by Mr Meyer was because of a negligent driving of the alleged driver
of the Mercedes Benz. Mr Meyer simply lost control and sustained injuries after
the Tuk -Tuk rolled. This Court doubts the validity of the claim. The accident was
first reported three weeks later and again 8 years later. When Mr Meyer arrived
at the hospital five hours la ter, his clothes were not bloodstained.
[17] Because of all the above reasons, I make the following order :
Order
1. The application for default judgment is refused.
2. There is no order as to costs .
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GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
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For the Plaintiff : Mr R J De Beer SC
Instructed by: LHI Inc Attorneys, Pretoria .
For the Defendant : No appearance
Date of Hearing 10 June 2025
Date of judgment : 04 July 2025