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
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case No: 16725/2022
In the matter between:
RYNO KOTZE Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Matter heard : 5 February 2025; 20 March 2025
Heads of argument filed : 30 May 2025
Judgment delivered : 24 July 2025
ORDER
a) Defendant was the sole cause of the collision.
b) The defendant is liable to plaintiff for 100% of his damages that may be
proven at the quantum hearing.
(c) The defendant is liable for plaintiff ’s costs on a party and party scale such
costs to include.
(i) Costs of counsel on scale B.
(ii) The qualifying fees of the expert witness Mr Barry Grobbelaar.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PARKER AJ
Introduction
[1] This judgment on the liability or the apportionment thereof pertain ing to that of
plaintiff who on 9 June 2021 on a gravel road in Saron, Western Cape, was injured in a
motor vehicle accident when a tractor with registration number C[...] driven at the time
by Nicholas Thomas Willemse (hereinafter referred to as Mr Willemse) collided with the
plaintiff’s Yamaha motorcycle bearing registration number C[...] which was driven at the
time by the plaintiff.
[2] The plaintiff attributed sole negligence caused by Mr Willemse in that he drove in
a negligent manner. The defendant opposed the summons and pleade d that the
insured driver was not negligent and pleads that the collision was caused by the sole
and exclusive negligence of the plaintiff , alternatively if it should be found that the
insured driver was negligent, that there should be an apportionment of negligence.
The issues for determination
[3] The issues are:
3.1 whether the plaintiff proved that the insured driver was negligent.
3.2 If the plaintiff proved that the insured driver was negligent whether
the plaintiff proved that such negligence was causally connected to
the collision
3.3 if it should be found that the insured driver was negligent w hether
an apportionment of negligence applies and if so, to what extent.
The evidence
[4] The plaintiff testified that around midday, he was on his way to eat lunch at the
farm manager’s house on the farm. He was travelling on his motorcycle on the gravel
road (dirt road) alongside the naartjie orchards, when the tractor driven by the insured
driver towing a spray tank , suddenly appeared o ut of one of the orch ards and turned
directly across his line of travel. Plaintiff was wearing a helmet and travelling at a speed
of 20 km/h at the time of the collision. The weather was clear, and the road was not in a
terrible condition albeit it had some thick sand.
[5] The plaintiff only saw the tractor for the first time when it pulled out of the orchard
in his line of travel which was very close to him at that stage. The orchards were
described as in rows meeting the gravel roa d at a sharp angle and not a 90 degree
angle. According to his evidence the insured driver had to take a wider turn into the
gravel road because of the sprayer that it towed, to ensure that it did not jack knife.
[6] As the plaintiff was on his motorcycle he kept a close watch on the unobstructed
road and as a result of the loose sand , he was concentrating on the road as feared if he
looked left or right , he may lose his balance on the thick sand . He describes how he
slammed his brakes and attempted to avoid the accident by swerving to his left.
[7] The material damages to both vehicles were pointed out by the plaintiff , to the
front of the tractor especially against the w eights used to weigh down the tractor at the
front. The motorcycle came to a rest in the direction that he was traveling, and the
plaintiff lay close to the right front wheel of the tractor after the collision occurred.
[8] The collision occurred on the right hand side of the motorcycle , specifically the
fuel tank area and the cooli ng fins of the engine . It was put to the plaintiff that the
insured driver's version of the point of impact was on the front left wheel of the tractor
and that the plaintiff flew across the bonnet of the tractor and landed on the right hand
side of the tr actor. This version was denied by the plaintiff as the damage to his
motorcycle does not support the insured driver's version.
[9] Under cross examination , it was put to the plaintiff that the insured driver's
version was that he had put out warning boards at the entrance to the area of the
orchards where they would be spraying . This was denied by the plaintiff as he had not
seen any such war ning boards in h is two years of working on the farm nor were there
any warning boards on the day of the accident nor were there any red flag s warning
passers-by of the presence of a tractor.
[10] It was also put to the plaintif f under cross examination that t he spray ta nk
attached to the rear of the tractor has a tower with the spraying nozzles attached and
that such tower would have risen above the line of trees implying that he ought to have
seen i t. This plaintiff denied that the height of the sprayed tower would have been
seen i t. This plaintiff denied that the height of the sprayed tower would have been
visible above the tree line since the trees were already fully grown , very dense and
therefore would have been taller than the spray tower . The trees were already higher
than the spray tower and the sprayer would spray the trees on the naartjies rather than
the top of the trees.
[11] As to what steps the plaintiff had done to avoid the collision his answer was no ne
which he echoed through his cross examination and testified that he tried to a void the
collision but could do nothing more than what he had done.
[12] Mr Grobbelaar was called as an expert witness. He is a mechanical engineer
that specializ es in the reconstruction of motor vehicle accidents with experience in
forensic mechanical engineering . His evidence was based on his opinion formed by
looking at the photographs provided and noted that there was some damage to the front
and bottom of the weights . He did not physically inspect the tractor nor was he
permitted to do a site inspection as he was not provided access to farm. Consequently,
his report was drawn on information provid ed to him by various affidavits , interviews,
documents, photographs a nd Google Earth image s. From the above resources he
could point out the location of the accident , indicating the direction of travel of the
parties, and in which direction the tractor had turned. He testified that the orchard had a
sharp angle, and that the tractor would have to make a wide turn to the other side of the
road to come back because of this angle. Of importance, he noted that the road was
approximately 6 meters wide . He also examined the photographs of the material
damages to both v ehicles and confirmed that the damage was to the front right of the
motorcycle specifically damage of the cooling fins of the engine and the right side of the
fuel tank whilst the tractor was damaged along the w eights attached to the front of the
tractor as shown by horizontal scrape marks.
[13] In his expert opinion , his evidence was that when considering the damage to
both vehicles, it was probable that the motorcycle collided with the weights attached to
both vehicles, it was probable that the motorcycle collided with the weights attached to
the front of the tractor and the weights rammed into the right side of the motorcycle in
the vicinity of the fuel tank and engine cooling f ins. It was probable that the vehicles
were close to being at a right angle relative to one another when the collision occurred .
Under cross examination the expert witness answered that one could not exclude that
the marks on the weight could have been old marks.
[14] In the reconstruct ion function of how the collision had occurred Mr Grobbelaar
testified that the insured driver would have entered the gravel road from the left to the
right hand side of the photograph which was exhibited and once the insured driver had
passed the l ast three in a row of trees , he would have had a clear visibility all the way
down the gravel road. Photographs of the tractor was shown to the expert who
explained for the defendant to have seen the motorcycle approaching, the insured driver
sits just forward of the axle of the rear wheel of the tractor, in other words the rest of the
tractor projects in front of the driver , this has the implication that the front of the
tractor(the nose) would project about 2.5 meters into the gravel road (considering that
the road is 6 meter s wi de - would make it nearly halfway ) before the insured driver
would be able to see down the road.
[15] In testing the above against the version of the insured driver gleaned fro m the
statement provided to Mr Grobbelaar , his opinion is that the insured dr iver did not stop
before exiting the orchard when he entered the gravel road, bearing in mind that he also
leaned over to the right in order to close the spraying taps and only look ed left when the
tractor was already out of the orchard with the front wheels on the gravel road.
[16] Mr Grobbelaar went to lengths to explain the measurements of the gravel road,
the distance between the end of the orch ard and the start of the gravel road, as well as
the specifications of the tractor . In his view it would have been possible for the insured
driver to have come to a stop at the edge of the orch ard and to have had a clear view of
the gravel road before proceeding to execute his turning manoeuvre . Had the insured
the gravel road before proceeding to execute his turning manoeuvre . Had the insured
driver done the latter ,the insured drive r would have seen the plaintiff travelling along
the road and could have waited for him to pass before entering the gravel road.
[17] To explain it further having regard to the plaintiff, Mr Grobbelaar testified that if
the tractor had emerged from the ro w of trees and then stopped the plaintiff would have
been able to see the tractor as he had an unobstructed view down the road . Had this
occurred, the plaintiff would have been able to stop his motorcycle by applying his
emergency brakes prior to the tract or colliding with the motorcycle . Under cross
examination, the insured driver's version of the point of impact was put to Mr Grobbelaar
that it was on the front left wheel of the tractor and that the plaintiff flew across the
tractor and landed on the rig ht hand si de of the tractor . Mr Grobbelaar replied that the
latter statement w as highly improbable and further improbable that it was the tractor's
tyre that caused the damage to the motorcycle . This he said is because the damage
sustained to the motorcyc le could not have been caused by a blunt impact such as the
wheel of the tractor. Such impact was only caused by a narrow point of impact such as
the weights of the tractor.
[18] Therefore the conclusion drawn by the expert witness is that the plaintiff
travelling at 20 kilometers per hour and the tractor having been 5.5 meters in front of
him when it pulled out of the orch ard would have needed 1.1 seconds from the start of
braking for the motorcycle to have come to a halt to avoid the collision viewed from the
insured driver's perspective . It would have taken the trac tor 2 seconds to reach the
point where the collision occurred . The average reaction time is 1.5 seconds the re
would have only been 0.5 seconds of braking time before the collisio n occurred, thus
pointing to the sole negligence of the defendant in that the plaintiff would not have been
able to brake in time to avoid the collision.
[19] It was also put to Mr Grobbelaar during cross examination that it was the
instruction of the farm manager to the insured driver that he was not to stop at any cost
whilst he was busy spraying the na artjie trees. Mr Grobbelaar replied that he could not
comment on such an instruction however went on to state that if the driver would blindly
comment on such an instruction however went on to state that if the driver would blindly
adhere to such an instruction this would mean that the driver would drive into the road
without heed of other road users. The issue of the nozzles of the spraye r protruding
above the line of trees as defendant needed to spray the very top of the trees , Mr
Grobbelaar referred to the photograph of the spray tower and specifically noted that the
nozzles at the top of the tower are angled in a manner that prevents them from spraying
downwards and instead sprayed outwards and concluded that as such, the tower could
not have been tall enough to protrude above the line of the trees in order to spray the
top of the trees.
[20] The insured driver, Mr Willemse testified had been working on the farm for 12
years and six months as a spray man and monitor and he was instructed not to stop
inside the orch ards as the tractor had been calibrated to spray a certain dosage on
trees and that he cannot spray more than the allowed dosage . Before commencing his
spraying activity, he would plant a sign at the bottom of the orch ard depicting a tractor
and spraying trailer placed at the start of the orch ard as well as one at the top of the
orchard. The boards were described as being approximat ely 30cm by 30c m and were
attached to a small pole which was stuck into the ground nex t to the road, however, that
the boards could not reach a height of more than 40cm above the level of the ground.
[21] The i nsured driver admitted to not looking before entering the gravel road and
that he had made h is turn without consideration whether there were other uses on the
gravel road.1 There were also inconsistences raised about the affidavit he had deposed
to obtained by a Mr Colyn. There is no need for me to dwell too much on this as the
insured driver denied the contents that the motorcycle collided with the weights of the
front of the tractor and that h e di sagreed with certain contents at paragraph 5 and 6
thereof alluding those contents of the affidavit obtained by Mr Colyn had been added
the affidavit. He took issue with regard to the contents of paragraph 6 which should be
paragraph 5 ,was not his own .2 During the trial he testified that he was instructed to
spray the naartjie orchards that morning and he was not to stop while he was spraying
the orchards, and he travelled at the low speed as instructed.
[22] The insured driver conceded that the plaintiff may not have seen the warning
[22] The insured driver conceded that the plaintiff may not have seen the warning
boards and confirms there were no assistant with a flag to warn other road users of the
spraying. Furthermore, photographs of the scene of the accident were presented to the
1 Sworn affidavit of the insured driver
2 page 11 line 15 of the transcript
insured driver and he was shown where the plaintiff was lying on the gro und
subsequent to the collision and seemed to suggest that someone had moved the
motorcycle. He insisted that when he exi ted the orchard he looked left and right and
thereafter turned back to his right hand side to turn off the sprayer and once he had
started the turning manoeuvre and turned back to face forward that he saw the plaintiff
coming from the left hand side about 5 to 10 metres away from the tractor and that he
was already in the road at that time and he saw the plaintiff applying brakes and sliding
in the sand causing the insured driver to apply his brakes.
[23] Under cross examination the testimony of the insured driver regarding his
observations of looking left and right as he was exiting the orchard that his view was still
obscured by the trees , his response was that that is why he had set out the warning
signs. Importantly, he conceded that after the last tree he had leaned over top his right
to close the spray nozzles 3 . The insured driver could not tell what speed the plaintiff
was riding at and therefore could not dispute that this plaintiff's version tha t he was only
travelling 20 kilometres per hour. Also, the insured driver testified that after the collision
the motorcycle was on the left of the tractor and the plaintiff on the right hand side.
[24] It was the evidence of the insured driver that there was nothing he could do to
prevent the accident as it happened suddenly . He also conceded that there was a
possibility that the spray tower might not have been visible at the time of the accident.
Under cross examination he also confirmed that the naartjie trees are on a ridge, so the
base of the trees is higher than where the tractor is in the orch ard, and a further
concession was that the naartjie trees were bigger at the time when the accident
occurred as it was not due for pruning.
Test for negligence
occurred as it was not due for pruning.
Test for negligence
[25] Counsel for both parties articulated that the onus rests on the plaintiff who bears
the onus of proving negligence which caused the damages suffered on a balance of
3 Pages 15- 16 lines 20-10
probabilities. The test for negligence was stated in Kruger v Coetzee 4 and I need not
repeat the fin dings. Furthermore, the defendant must provide evidence to disprove the
inference of negligence on its part failing which he risked the possibility of being found
to be liable for damages suffered by the plaintiff.5
[26] On the other hand , where the defendant has in the alternative pleaded
contributory negligence and an apportionment , the defendant would have to adduce
evidence to establish a legal basis on the part of the plaintiff on a balance of
probabilities.6
Apportionment of Damages Act 34 of 1956
[27] In terms of section 1(1)(a) of the Apportionment of Damages Act, a trial court has
the discretion to reduce plaintiff's claim for damages suffered on a just and equitable
basis and to apportion the degree of liability . Where the court is considering an
apportionment, the court is obliged to consider the evidence as a whole in its
assessment of the degrees of negligence of the parties.
[28] In AA Mutual Insurance Association Limited v Nomeka,7 turning across the line of
oncoming traffic is inherently a dangerous manoeuvre placing a stringent duty upon a
driver who intends executing such manoeuvre and in order to do so , the driver must
properly satisfy himself that the road is safe when choosing the opportune moment to
do so. The duty of the driver requires a driver to scan the road ahead continuously for
potential obstructions.8
Facts applied to the law
4 1966 (2) SA 428 (A) AT 430E -G
5 Supra De Kock
6 supra para 22
7 1976 (3) SA 45 (A) at 52E-F
8 Nogude vs Mniswa 1975 (3) SA 685 (A) at 688-D
[29] Counsel for the insured driver in quoting National Employees General Insurance
Company Limited v Jaggers 9 was of the view that where there are mutually destructive
versions, and plaintiff can only succeed if he satisfies the court on a preponderance of
probabilities that his version is true and accurate and therefore acceptable and that the
other version advanced by the defendant is therefore fal se and false or mistaken and
therefore, falls to be rejected.
[30] I do not agree that there are two mutually destructive versions and in the
following paragraphs I will s et out why I am of the view that the plaintiff ’s evidence is
more probable and truer, and that the defendant’s version stands to be rejected.
[31] Firstly, the insured driver w as an experienced farm employee , therefore whether
the reasonable person in the position of the insured driver would have foreseen the
possibility of his conduct by executing the manoeuvre causing injury to another and
whether the reasonable person would have taken reasonable steps to guard against
such occurrence. In this regard on the insured driver's own evidence , he did not look
before exiting the orchard as he was concentrating on the spray nozzles . It is clear that
he did not have a view of the whole road before entering into it.
[32] This manoeuvre , together with the instruction not to stop the tractor while
spraying, goes against the reasonable person in the position of an insured driver, would
have foreseen the possibility of a vehicle travelling down the road and t hat turning
across the entire road might cause injury to a vehicle travelling down the road o r road
users who could not see the tractor suddenly emerging from the orch ard whilst not
stopping.
[33] According to the expert witness Mr Grobbelaar there were s everal opportunities
for the insured driver to have taken the necessary steps to have avoided the collision
had he stopped past the edge of the orchard or had he emerged from the row of trees
had he stopped past the edge of the orchard or had he emerged from the row of trees
9 1984 (4) SA 437 (E) at 44O E-G
and then stopped . In that event , the plaintiff would have been able to see the tractor
and the plaintiff would have been able to stop his motorcycle earlier.
[34] Even if I accept that the plaintiff conc ession that because the sand on the dirt
road was so thick he could not look left and right as he was driving in the middle of the
road and feared losing his balance, in my view cannot be used be against him. When
one weighs this evidence as against the concessions made by the insured driver, there
is no escaping that there was by far a greater duty on the defendant.
[35] The insured driver cannot escape that on his own version he f ailed to stop . The
question then remains what more could the plaintiff ha ve done in those circumstances .
His own and that of the expert witness was none . It would have been too late . The
expert witness explained the calculations based on speed, distance , reaction and
timing. In the result the insured driver failed to satisfy himself that it was safe and
opportune to carry out the manoeuvre that he did, pointing to him having failed to keep
a proper lookout and ultimately, he failed to exercise the level of care expected of a
reasonable person in his position at the time of the collision.
[36] The insured driver ’s failure to take reasonable steps to avert such a reasonably
foreseeable danger result in the insured driver being negligent and the sole cause of
the collision.
[37] In considering the defendant ’s plea of contributory negligence, in my mind, it
was pleaded only to reduce its liability and no more . The court is satisfied that there is
nothing more that the plaintiff could have done to have avoided the collision .
Accordingly, the plaintiff has proven that the insured driver was solely responsible for
the collision and accordingly no apportionment is to be applied.
Costs
[38] There are no reasons to depart from the norm that costs follow the result.
Order
[39] Having heard the submissions made by counsel it is ordered:
a) Defendant was the sole cause of the collision.
b) The defendant he's liable to plaintiff for 100% of his damages that may be
proven at the quantum hearing.
(c) The defendant is liable for plaintiff ’s costs on a party and party scale such
costs to include.
(i) Cost of counsel on scale B.
(ii) The qualifying fees of the expert witness Mr Barry Grobbelaar.
________________________
R K PARKER
ACTING JUDGE OF THE HIGH COURT
Appearances:
Counsel for the Applicant: Adv Pierre Rabie
Instructing Attorney: K G Kemp Attorneys
Mr K Kemp
For the Respondent: State Attorney: Mr F Goosen
Instructing Attorney: Mr A Hoosen - RAF
Hearing Date: 20 March 2025
Judgment Date: 24 July 2025
The judgment is delivered by electronic submission to the parties and their legal
representatives.