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: 674/20
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: NO
DATE 31 JULY 2025
SIGNATURE
In the matter between:
V L MODUKANELE Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
This judgment and the order incorporated herein is handed down electronically by
circulation to the applicant’s legal representatives by e -mail and by uploading to
CaseLines.
Moultrie AJ:
[1] This is an action instituted by the plaintiff against the Road Accident Fund in
terms of section 17(1) of the Road Accident Fund Act, 56 of 1995 for damages
arising from bodily injuries allegedly sustained by him in a motor vehicle accident
that occurred on 27 October 2018 in Felicia Street, Hartswater, Northern Cape.
The pleaded issues, and the agreements reached during pre-trial procedures
[2] The plaintiff pleads that he was a pedestrian at the time of the accident, that
he was “struck from behind” by a motor vehicle driven by an identified driver (whom I
will refer to as “the driver”), and that the sole cause of the accident was the negligent
conduct of the driver. The plaintiff pleads that he sustained the injuries in the
accident “specifically but not limited to”: (i) concussive and diffuse brain injury; (ii)
whiplash injury to his spine; (iii) fracture of his right tibia and fibula; (iv) various
bruises, abrasions, contusions and lacerations; and (v) psychological shock and
trauma.
[3] The plaintiff’s pleaded claim encompasses the following heads of damages
allegedly suffered as a result of such injuries: (i) R10,000 in respect of past medical
and hospital expenses; (ii) an order requiring the RAF to furnish an undertaking as
envisaged in section 17(4) of the RAF Act in respect of future hospital and medical
treatment; (iii) R500,000 in respect of past and future loss of earnings and earning
capacity; and (iv) an amount of R600,000 for non-pecuniary loss.1
[4] The RAF delivered a special plea disputing the court’s jurisdiction to grant the
damages claim for non -pecuniary loss (colloquially referred to “general damages”)
on the basis of the plaintiff’s alleged non -compliance with the procedures and
requirements prescribed under section 17(1A) of the RAF Act in Regulation 3 of the
Road Accident Fund Regulations 2 for the purposes of obtaining an determination
that the plaintiff indeed suffered a “serious injury ” (“the prescribed assessment
process”). I note that this determination is a jurisdictional requirement for an award of
damages for non -pecuniary loss in terms of the proviso to section 17(1) of the RAF
Act.
[5] In pleading over, the RAF only admitted (i) the identities of the parties; (ii) the
[5] In pleading over, the RAF only admitted (i) the identities of the parties; (ii) the
jurisdiction of the court; and (iii) the date and place of the accident . All of the other
material allegations in the particulars of claim are denied. The plea also advanced a
positive defence in the form of the plaintiff’s alleged non -compliance with the
1 The quantum of the claimed damages was originally R290,000 in respect of loss of earnings and
R200,000 in respect of general damages, but was increased by means of an amendment to which the
RAF did not object, and which was perfected prior to the commencement of the trial.
2 RAF Regulations, published under GN R770 of 2008 in GG 31249 of 21 July 2008, as amended.
prescribed assessment procedures and that he in fact did not suffer a serious injury,
as well as the following further positive defences : (i) that the sole cause of the
accident was the negligent conduct of the plaintiff; and (ii) alternatively, the defence
of sudden emergency; and (iii) further alternatively, contributory negligence on the
part of the plaintiff, and apportionment under the Apportionment of Damages Act, 34
of 1956 in the event that it may be found that the accident was in part caused by
negligence on the part of the driver.
[6] The plaintiff did not deliver a replication, and the issues in dispute as they
appear from the pleadings were not further narrowed during pre-trial procedures.
[7] It was, however, recorded in the signed minute of a pre-trial meeting held on 1
March 2022 that:
a. the RAF was “ at this stage willing to use the [medico -legal] reports of the
plaintiff”, which were identified as those of an orthopaedic surgeon, an
occupational therapist, an industrial psychologist and an actuary , but that
it was “busy with investigations and reserves [its] rights” in this regard;
b. the RAF supplied the same answer (i.e. that it was willing to use the
reports of the plaintiff but was still investigating and reserved its rights) in
response to the following enquiries made by the plaintiff:
i. whether the RAF admitted the injuries and sequelae thereof as set
out in the various medico-legal reports;
ii. whether the RAF admitted the factual allegations and opinions
contains in the expert notices of the plaintiff;
iii. whether the RAF required the examination of any person or item in
terms of Rule 36; and
c. the plaintiff’s attorneys would prepare bundles of the documents to be
used at the trial (which may include copies), which documents the parties
agreed “are what they purport to be and they may be used without formal
proof” but noted that they do “not admit the correctness thereof [and] as
proof” but noted that they do “not admit the correctness thereof [and] as
such the correctness of the content will have to be determined at the trial”.
The RAF’s non-appearance, separated issues and the issues for determination
[8] Despite having opposed the action , delivered its plea and participated in the
pre-trial procedures, the RAF failed to appear on the date of the trial.
[9] At the commencement of the trial, the plaintiff’s counsel sought an order that
the claim for general damages (including the special plea of jurisdiction in that
regard) and the quantification of his claim for past medical and hospital expenses be
separated and postponed for later determination in terms of Rule 33(4). I was of the
view that a separation on this basis would be convenient and indicated that this
would be recorded in the order to be issued.
[10] The trial for the determination of the remaining issues proceeded in terms of
the procedure provided for in Rule 39(1). In view of the viva voce evidence that was
given (see below), it is necessary for me to deal at this stage with a preliminary
question regarding the issues that arise for my determination in the matter.
[11] Although the Rule 39(1) procedure may correctly be described as “default
judgment”, even in circumstances such as the present where the proviso to the rule
does not apply (i.e. where the claim is not for a debt or liquidated demand),3 it is not
correct that the only evidence necessary to be adduced in order to obtain judgment
is in relation to the assessment (i.e. quantification) of the claimed unliquidated
damages. In particular, I do not agree with the submission of the plaintiff’s counsel
that the Constitutional Court’s dictum in Baliso to this effect is of application in cases
such as the present .4 Not only was Baliso not decided in the context of the Rule
39(1) procedure (indeed, it was not even decided on the basis of the procedure in
Rule 31(2)(a), which is the proc edure the court was referring to in the relevant
passage), but it would simply be incorrect to say that “the claim is not opposed”
where a party who has defended and pleaded does not appear . It cannot be
accepted that all of the factual allegations made in the particulars of claim other than
accepted that all of the factual allegations made in the particulars of claim other than
for the purposes of quantum “are admitted or not disputed” – the contrary is
3 Katritsis v De Macedo 1966 (1) SA 613 (A) at 617E-F.
4 Baliso v First Rand Bank t/a Wesbank 2017 (1) SA 292 (CC) para 12 : “In terms of our civil
procedure, default judgment for a debt or liquidated demand is granted on an acceptance of the
allegations as set out in the summons, without any evidence. Where the claim is not for a debt or
liquidated demand, the court may, after hearing evidence, grant judgment. This is usually only
evidence on the amount of unliquidated damages. The reason for not hearing evidence on the other
factual allegations made in the summons or particulars of claim is that, because the claim is not
opposed, it may be accepted that those allegations are admitted or not disputed.”
manifestly the case. What is more, even where there is indeed no opposition, the
Supreme Court of Appeal has confirmed that “where the cause of action is delictual,
damages can in most cases only be determined after evidence has been led also in
relation to the cause of action ”,5 although this may be done on affidavit in terms of
Rule 38(2).6
[12] Notwithstanding the aforegoing, it seems to me that the non -appearance of a
defendant who has defended and pleaded does have consequences. In particular:
a. there is full bench precedent in this division 7 that the plaintiff need only
satisfy the court that the accident was part ly caused by the negligence of
the driver in order to be awarded “100%” of the total damages that may be
assessed (quantified) in respect of the injuries (i.e. damage) sustained in
the accident; and
b. as a result , it would not be appropriate for me to consider the pleaded
positive defences of sudden emergency and contributory negligence.8
[13] The issues remaining for determination are thus limited to:
a. fault, i.e. whether the accident was partly caused by any negligence on
the part of the identified driver;
5 EFF v Manuel 2021 (3) SA 425 (SCA) para 101, approving the statement to that effect in Dorfling v
Coetzee 1979 (2) SA 632 (NC) at 635B-D, a case involving a claim for damages flowing from a motor
vehicle accident. See also Knight NO v Harris 1962 (1) SA 317 (SR) at 318G-H.
6 Madibeng Local Municipality v Public Investment Corporation Ltd 2018 (6) SA 55 (SCA) para 26,
holding that “[t]he approach to rule 38(2) may be summarised as follows . A trial court has a discretion
to depart from the position that, in a trial, oral evidence is the norm. When that discretion is exercised,
two important factors will inevitably be the saving of costs and the saving of time, especially the time
of the court in this era of congested court rolls and stretched judicial resources. More importantly, the
exercise of the discretion will be conditioned by whether it is appropriate and suitable in the
circumstances to allow a deviation from the norm. That requires a consideration of the following
factors: the nature of the proceedings; the nature of the evidence; whether the application for
evidence to be adduced by way of affidavit is by agreement; and ultimately, whether, in all the
circumstances, it is fair to allow evidence on affidavit.
7 See, for example Fox v RAF [ 2018] ZAGPPHC 285 (26 April 2018) . While I have considered the
recent judgment of Muller J in Maroga and Another v Road Accident Fund 2025 JDR 3013 (LP) , I
have concluded that it is neither directly on point (it related to a default judgment in the absence of a
plea) nor binding on me (as the decision of a single judge in another division).
8 While I make no finding as to the precise incidence or nature of the onus or evidentiary burden that
may lie upon a defendant to prove these defences (see RAF v Grobler 2007 (6) SA 230 (SCA) para 3
and Harrington NO v Transnet Ltd t/a Metrorail 2010 (2) SA 479 (SCA) para 33), I have no doubt that
no “burden of proof lies upon” the plaintiff in the language of Rule 39(1) in respect thereof. In view of
the separation order referred to above, I also need make no finding as to whether or not the RAF’s
non-appearance has the consequence that a court may assume that the jurisdictional requirements
referred to in paragraph [4] above in relation to the award of general damages for non -pecuniary loss
have been met.
b. causation of bodily injury, i.e. whether the plaintiff sustained any bodily
injuries as a result of the accident, and if so, what they were;
c. whether the plaintiff is likely to require any future medical and hospital
treatment as a result of those injuries, in which case he would be entitled
to the claimed order for an undertaking in terms of section 17(4) for future
medical and hospital expenses in respect of those injuries;
d. whether the plaintiff suffered any past or future loss of earnings or loss of
earning capacity as a result of the injuries proven to have been sustained
in the accident and, if so, what amount of damages should be assessed in
respect of such losses; and
e. costs.
The evidence and analysis
[14] Evidence was adduced in the form of the viva voce testimony of the plaintiff
himself as well that of a second witness, Mr Gras. Further evidence was adduced
pursuant to Rule 38(2), including the affidavits of medical experts and an actuary, for
the purposes of establishing and quantifying the plaintiff’s loss of earnings claim. In
the absence of any representation on behalf of the defendant at the trial, none of this
evidence was challenged, and some of it was admitted in view of the pre-trial minute.
[15] Subject only to the issue of causal negligence on the part of the identified
driver, I am satisfied that the evidence adduced establishes that: (i) the plaintiff
suffered bodily injury in the form of right tibia and fibula fractures 9 as a result of the
accident; (ii) he is entitled to the undertaking that he claims in respect of that injury;
(iii) that it is more probable than not that he has or will suffer a loss of earning
capacity as a result of that injury ; and (iv) that he should be awarded damages in
respect of that loss in the amount reflected in the draft order presented by his
counsel.
[16] The evidence in relation to the circumstances under which the accident
occurred was as follows.
9 Report of Dr Marin dated 24 March 2021, paragraph 6.
[17] Shortly before the accident occurred, the plaintiff was in a tavern with Mr
Gras. Having left the tavern, they initially stood on the pavement on the same side of
the road, discussing soccer . The plaintiff and Mr Gras then proceeded to partially
cross the road , but stopped on the tarred road surface, in the roadway of the far
lane. The plaintiff testified that “we thought it was safe, we never thought a vehicle
would pass”. He explained that they were smoking “and whilst we were smoking, we
… went on discuss ing soccer”. While they were doing so, they were also “dancing”
with a crowd of other of patrons of the tavern who were “roaming” in the area . He
was hit “from behind” by the vehicle driven by the driver.
[18] Mr Gras’s evidence was consistent with this version. In particular, he testified
that he and the plaintiff stopped walking “just before the end of the second lane”, that
“we never left the road ”, that “w e stood on the edge of the road on the other side ”
and that “we were dancing and discussing” when the accident occurred.
[19] Although this evidence would appear to me to give rise to a clear inference
that the accident was at least in part caused by negligence on the part of the plaintiff,
I have found above that the only question that I am required to determine is whether
it also establishes that the accident was, at least in part, caused by any negligence
on the part of the driver.
[20] I find that it does. In particular, the fact that there was a crowd of people on (or
even next to) the road would have placed a reasonably careful driver on their guard.
This, combined with the fact that the plaintiff and Gras were evidently standing on
the road and in the driver’s path of travel for some time (enough to be “smoking”,
“discussing” and “dancing”) before the accident , leads me to the conclusion that the
negligence of the driver was – at least to some extent, however small – a causal
factor in the occurrence of the accident.
Conclusion, costs and order
factor in the occurrence of the accident.
Conclusion, costs and order
[21] In the circumstances, I find that the defendant is liable to the plaintiff for 100%
of the damages as he has proved (and of such further damages as he may prove or
as may be agreed) are recoverable in respect of the bodily injury that I have found
he sustained in the accident.
[22] I have considered the formulation of the order in the draft submitted by the
plaintiff’s counsel, and have adjusted it to reflect the following principles that I
consider appropriate:
a. the admission of evidence on the basis of Rule 38(2) was pursuant to a
procedural ruling, and it is unnecessary to include it in the final order;
b. the separation order logically precedes all other orders;
c. the purpose of the declaratory relief is to specifically identify the bodily
injuries in respect of which the defendant ’s liability under the separated
and postponed claims remains to be determined;
d. the scope of a section 17(4) undertaking is specified in the RAF Act, and
cannot be adjusted by the court;
e. it is appropriate to identify the bodily injury in respect of which an award of
damages is made;
f. the costs order should specify the relief in respect of which it is granted
and (other than expert -related costs) should ordinarily not specifically
include orders dealing with standard litigation costs (such as the costs of
attorneys and counsel undertaking specific tasks such as preparing
bundles, attending trial etc.) unless specifically justified, for example in
relation to counsel’s preparation of heads of argument prior to the trial
(which I considered to be helpful in this case); and
g. when a matter has been determined rather than settled, it is not
necessary for the court to have regard to any contingency fees agreement
that may have been concluded.
[23] I make the following order:
1. The plaintiff’s claim for general damages and the issue of the quantification of
his claim for past medical and hospital expenses are separated from the rest
of the issues in terms of Rule 33(4) and are postponed for later determination.
2. It is declared that the defendant is liable to the plaintiff (subject to the statutory
limitations on the award of general damages contained in the Road Accident
Fund Act, 56 of 1996 and the regulations promulgated thereunder ), for 100%
Fund Act, 56 of 1996 and the regulations promulgated thereunder ), for 100%
of such general damages and damages for past medical and hospital
expenses as may be proved or agreed are recoverable in respect of the right
tibia and fibula fractures that he sustained as a result of the motor vehicle
collision that occurred on 27 October 2018 (“the bodily injury”).
3. The defendant is ordered , within 14 days from the date upon which this order
is served on it, to furnish the plaintiff with an undertaking in terms of section
17(4) of the Road Accident Fund Act 56 of 1996 (as amended) in respect of
the costs of all future medical and hospital treatment as he may require in
consequence of having sustained of the bodily injury.
4. The defendant is ordered to pay the plaintiff the sum of R256 837.00 (Two
Hundred and Fifty -Six Thousand Eight Hundred and Thirty -Seven Rand) in
respect of the loss of earnings suffered by the plaintiff in consequence of
having sustained the bodily injury , which amount shall be paid into the trust
account of Gildenhuys Malatji Incorporated, ABSA Bank, Brooklyn Branch,
Account Number 4[...], Branch Code 3[...] under Reference: G
ERASMUS/01893548 within 180 (one hundred and eighty) days from the date
upon which this order is served on the defendant.
5. Should the defendant fail to make payment of the aforesaid sum within the
period stipulated in paragraph 4 above , it shall be liable to the plaintiff for
interest thereon at the applicable interest rate per annum to the date of final
payment, which will include the interest due and payable.
6. The defendant is ordered to pay the plaintiff’s taxed or agreed costs of suit on
the high court scale, including the costs of counsel on Scale B (including for
the formulation of heads of argument) , incurred for the purposes of obtaining
the relief granted herein , which costs shall subject to the discretion of the
taxing master, include but not be limited to the costs of (i) travelling to,
accommodation and attending to examinations with; (ii) obtaining the medico-
legal and actuarial reports (including addendum reports, RAF form 4 reports ,
joint minutes or reports) of; (iii) expert affidavits for the purposes of trial of; and
joint minutes or reports) of; (iii) expert affidavits for the purposes of trial of; and
(iii) all radiological reports and examinations conducted by the following
experts:
6.1 Dr JJ Schutte;
6.2 Dr JP Marin, Orthopaedic Surgeon;
6.3 Dr H Swanepoel, Clinical Psychologist;
6.4 A Nieuwoudt, Occupational Therapists;
6.5 B Oosthuizen, Industrial Psychologist; and
6.6 Mr J Potgieter, Actuary.
RJ MOULTRIE
ACTING JUDGE
Appearances: For the plaintiff: HJ Strauss, instructed by De Bruyn & Strauss
Attorneys, c/o Gildenhuys Malatji Inc., gerasmus@gminc.co.za
For the defendant: No appearance