SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case Number: 8386/21
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 03 July 20 25
SIGNATURE

In the matter between: -
SIBUSISO MOEMISE Plaintiff

and

ROAD ACCIDENT FUND Defendant

Heard on: 02 April 2025
Delivered: 03 JULY 2025 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded
to the CaseLines system of the GD and by release to SAFLII. The
date and time for hand -down is deemed to be 15:00 on 03 JULY
2025


___________________________________________________________________
JUDGEMENT
___________________________________________________________________
MAMANYUHA AJ
INTRODUCTION
(1) This is a claim for damages arising from a motor vehicle accident that
occurred on 01 December 2018. The plaintiff was a pedestrian at the time of
the collision. The matter is proceeding in respect of merits only; quantum of
damages is separated from liability and postponed sine die .

(2) The defendant filed a notice to defend but failed to deliver a plea within the
required timeframe. In the absence of the plea being filed the plaintiff served a
notice of bar on the defendant on 08 November 2023.

(3) This court was called upon to deal with merits, proceeding on a default basis.
After hearing the evidence of the plaintiff and argument by counsel, I reserved
judgment.

PLAINTIFF’S CASE
(4) The plaintiff, Mr Sibusiso Moemis e testified that on 01 December 2018 at
approximately 21h45, he was a pedestrian, jogging, while wearing reflective
gear. The insured driver approached plaintiff from behind, while he was
running in an area usually designated as parking spaces, on the side of
Heckroodt Circle Road, and collided with him from behind. The insured driver
then fled the scene.

(5) The plaintiff further testified that where the accident happened, is an area
frequented by a lot of pedestrian foot traffic and there was also a lot of foot
traffic on the evening in question.

(6) The plaintiff testified that he was running on the left side very close to the curb
and that there was a pavement on the left -hand side of the road but he did not
run there as there was rubble on the day.

(7) The plaintiff testified that the road was a single vehicle carriage way from
each direction but the road was wide enough such that it was practice that
cars would park on the side of the road during the day even though this was
not necessarily a designated parking,

(8) Counsel for the plaintiff, confirmed that it would not be incorrect for a vehicle
to drive in the area in which vehicles would have parked during the day as this
was not a designated parking area.

(9) Plaintiff testified that every time when he hears the vehicle coming from
behind him, he would look back, and in this instance, he looked back and
realised that the vehicle was driving at the centre of the road.

(10) Mr Molotsi was the second witness who testified on behalf of the plaintiff that
he saw the plaintiff running before the accident. The vehicle that hit the
plaintiff was close to the runner, and as it approached the runner it swerved a
bit towards the runner as there was a bit of a deep on the road and the next
thing there was a bang. He then stopped his own vehicle and went across to
assist the runner.

(11) Counsel for the plaintiff submitted that the insured driver must have or should
have seen the plaintiff, the insured driver collided with the pedestrian and then
ran away. Counsel argued that the defendant was negligent with regard to the
collision.

(12) Counsel further argued that the defendant failed to plead contributory
negligence and because the defendant failed to plead contributory negligence
then the plaintiff is therefore entitled to be awarded 100% of his proven or
agreed damages.

ANALYISIS
(13) The first question to be answered is whether the insured driver was
negligent in causing the accident;

In the landmark case of Kruger v Coetzee (1966) 2 SA 428 (A) , the court held
that negligence arises if:
“(a) diligens paterfamilias in the position of the defendant -:
(i) would foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.”

(14) In the case before me the defendant was not available to dispute the plaintiff’s
version that the insured vehicle, driven by the insured driver, collided with the
plaintiff who was jogging with his back turned from the vehicle.

(15) In these circumstances, a diligens paterfamilias would have foreseen the
reasonable possibility that their conduct could harm the plaintiff and result in
patrimonial loss, and would have taken steps to prevent it. The insured
vehicle failed to take such precautions and consequently collided with the
plaintiff. In terms of section 17(1) of the Road Accident Fund Act, RAF is
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.

(16) The insured driver was negligent for the purpose of establishing liability on the
defendant in terms of the RAF Act.

(17) The second question then arises as to whether the plaintiff himself was
negligent by running on a public road with cars coming behind him as
opposed to running against oncoming traffic.

(18) Plaintiff testified that he preferred to run with the cars behind him because, it
was easier to turn left on the road that leads to his home without first crossing
from the right if he was running on the right -hand side, also that the other side
is steeper and better for him to first go up than going down.

(19) To determine whether the plaintiff should bear any responsibility for the
damages resulting from the accident, the court must apply the same
diligens paterfamilias test: would a reasonable person in the plaintiff’s
position have foreseen the likelihood that their own conduct could cause injury
resulting in patrimonial loss, and would they have taken steps to prevent that
outcome.

(20) The plaintiff testified that he could not run on the sidewalk because it had
rubble, when asked why he could not then run on the right and safer side of
the road and facing oncoming traffic, he mentioned his preference of the left -
hand side because of the reasons cited under paragraph 18 above.

(21) A failure to exercise reasonable care in one’s own interest constitutes
contributory negligence on the part of a plaintiff. Had the plaintiff moved over
to the right -hand lane, he would have gained an unobstructed view of
oncoming traffic, thereby significantly enhancing his ability to avoid danger.

(22) The plaintiff by his own conduct falls below the standard of a reasonable
person. In the circumstances, the court finds him contributorily negligent.


CONTRIBUTORY NEGLIGENCE

(23) Plaintiff’s counsel relied on case law to reinforce the submission that, in the
absence of a plea for contributory negligence, such negligence cannot be
attributed to the plaintiff.

(24) In my view, the court can still find such negligence on the plaintiff’s own
version if his evidence clearly supports such a finding .

(25) In AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA (A) , the
court considered whether the Apportionment of Damages Act applied where
contributory negligence had not been formally raised in the pleadings. The
plaintiff argued that the defendant was precluded from relying on contributory
negligence, and that the court was therefore barred from applying the Act,
even though the court found the plaintiff partly at fault. The court considered;
Van der Merwe v Fourie 1959 (3) SA 568 (E) , Tonyela v South African
Railways and Harbours 1960 (2) SA 68 (C) , Logiotis v Van Eyck 1968 (3)
SA 429 (E), where courts retained the discretion .

The court held in page 40: “ The weight of the decisions is therefore, that
provided the plaintiff’s fault is put in issue, an apportionment need not “be
specifically pleaded or claimed. This is correct in my view .”

(26) This approach was affirmed more recently in Jafar v Road Accident Fund
2024 JDR 1970 (GP) (unreported), para 26 . Although neither party had
explicitly pleaded or relied on contributory negligence, the court considered an
apportionment of liability. This was permissible because the nature of the
accident, the roles of both drivers, and their respective degrees of negligence
had been thoroughly examined in the evidence, cross -examination, and
argument. The judgment underscores that, while formal pleadings are
important, courts may still assess contributory negligence where the evidence
supports such a finding.

(27) Based on the aforesaid I conclude that the plaintiff was 30% negligent, while
the insured driver was 70% negligent.

ORDER
1. The prayers to the Plaintiff’s Application in terms of Rule 38 are hereby granted.

2. The Defendant’s liability relating to the injuries sustained and damages suffered
by the Plaintiff (“the merits”), be separated from the extent of injuries sustained
and damages suffered by the Plaintiff (“the quantum”).

3. The Defendant is ordered to pay 70% of the Plaintiff’s proven or agreed
damages.

4. The Defendant shall pay the Plaintiff’s taxed or agreed party and party costs on
the High Court scale, up to and including date of this order, the extent thereof to
be subject to the discretion of the Taxing Master, subject thereto that:

4.1 In the event that the costs are not agreed:

4.1.1 The Plaintiff shall serve a notice of taxation on the Defendant or
its attorney of record;

4.1.2 The Plaintiff shall allow the Defendant 180 (one hundred and
eighty) calendar days from date of allocator to make payment of
the taxed or agreed costs;

4.1.3 Should the payment not be effected timeously, the Plaintiff will
be entitled to recover interest at the mora rate promulgated from
time to time, per annum on the taxed or agreed costs from date
of allocator to date of final payment.

4.2 Such costs shall include:

4.2.1 The costs of and consequent to the appointment of counsel, Adv
C M Dredge, on the Senior -Junior scale, and on scale B in
accordance with the tariff of fees determined in the Uniform
Rules of Court 67A and 69, including, but not limited to his
perusal and preparation, as well as his day fee for 2 April 2025,
as well as the costs of and consequent to him preparing,
drafting, settling and bringing out Advice on Evidence and
memorandum, Heads of Argument (both preliminary and final),
founding papers to the Plaintiff’s application in terms of Rule 38
and compliance affidavits, and the costs of him consulting with
the Plaintiff and his attorney;

4.2.2 The costs of and consequent to the appointment of counsel, Adv
L Keijser , on the Senior -Junior scale, and on scale B in
accordance with the tariff of fees determined in the Uniform
Rules of Court 67A and 69, including, but not limited to her
perusal and preparation, as well as the costs of and consequent
to her preparing, drafting, settling and bringing out founding
papers to the Plaintiff’s application for default judgment;

4.2.3 The costs of and consequent to the Plaintiff’s trial bundle for
purpose of default judgment, as well as the costs of 3 (three)
copies thereof;

4.2.4 The costs to date of this order, which costs shall further include
the costs of the independent assessors, Johan Botha and/or
Theuns van der Merwe and/or Kobus van Graan, which shall
include all of their travelling costs and expenses (time and
kilometres), costs of and consequent to them locating and
consulting with, and transporting all witnesses, and collating
documentation and information, as well as formulating their
report(s);

4.2.5 The costs of and consequent to the Plaintiff ensuring compliance
with Case Lines (both time and tariff);

4.2.6 The costs of and consequent to the Plaintiff and the witnesses,
Boitumelo Molotsi and Lerato Moemise’s attendance of the trial
on 2 April 2025, including travelling, accommodation and
subsistence for both 1 April 2025 and 2 April 2025;

4.2.7 The Plaintiff’s attorney’s perusal and preparation in respect of
the default judgment application.

5. The amount referred to in paragraph 4 will be paid to the Plaintiff’s attorneys,
Gert Nel Incorporated, by direct transfer into their trust account, details of which
are the following:

ABSA Bank
Account number: [….]
Branch code: 3[...]
REF: GN15192

6. The quantum be postponed sine die.




T. Mamanyuha
Acting Judge






FOR THE PLAINTIFF: Adv C M Dredge
Instructed by:
GERT NEL INC
REF: GN15192




FOR THE DEFENDANT: No appearance

HEARD: 02 APRIL 2025
DELIVERED: 03 JULY 2025