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
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: 1453/2022
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
JUNÉ VAN DER MERWE Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Heard on: 26 – 27/03/2025
Delivered on: 08/08/2025
Summary: Action. Delict. Claim against the Road Accident Fund – Bodily
injuries. Liability and quantum separated – Accident Reconstruction Expert –
Approach to expert evidence restated – expert opinion must be based upon facts
established by way of admissible evidence.
ORDER
In the result, the following order is made:
The plaintiff’s claim is dismissed with costs on party and party scale.
JUDGMENT
MAMOSEBO ADJP
[1] On 03 February 2021 plaintiff, Ms Juné Van der Merwe , was the driver of a
Toyota Yaris with registration number V[...] which collided with a Ford
Ranger vehicle driven by the insured driver, Mr RP Rheeder, with
registration number J[...] on the N12 in the vicinity of Landbou Road and
Elcon School turn -off in Kimberley. She now claims damages in respect of
the injuries sustained in the amount of R2,884,552.42 against the Road
Accident Fund (RAF). On 03 February 2023 the parties agreed to separate
the merits and quantum in terms of Rule 33(4) of the Uniform Rules of Court.
[2] On the issue of merits, t he crisp issue for determination is whether the RAF
should be held liable for the collision that the plaintiff contends was caused
by the sole negligence of the insured driver.
The plaintiff’s evidence
[3] In the Rule 37 -minute plaintiff gave an indication that her case would
comprise the evidence of two witnesses, herself and Mr KW Lötter (the
Accident Reconstruction Engineer). However, her father, who was
throughout the proceedings present inside the courtroom, was also called to
testify.
[4] This is what the plaintiff has pleaded at para 4 of her Particulars of Claim:
‘The aforesaid motor vehicle accident was caused exclusively by the sole
negligence of the insured driver who was negligent in one or more or all of
the following respects:
1. He failed and/or neglected to keep a proper look out;
2. He failed and/or neglected to apply the brakes of his vehicle timeously
or at all;
3. He failed and/or neglected to have and to keep his vehicle under proper
control;
4. He failed and/or neglected to avoid the collision when by the exercise
of reasonable care, skill and the taking of reasonable precautions, he
could and should have done so.
5. He drove his vehicle at an excessive speed under the prevailing
circumstances; and
6. He allowed his vehicle to move into the lane for oncoming traffic.’
[5] The plaintiff testified that on the night of the accident she drove the vehicle
(Yaris) in the company of a friend, Ms Zan-Marie Olivier, who has
subsequently passed on. She has no recollection of the accident or whether
there were any steps that she took to evade the accident. She only
remembers being taken to hospital and being sedated . She regained
consciousness at Gariep Hospital two or three days later. She spent four to
six weeks in the intensive care unit and thereafter two weeks in the normal
ward. She sustained a fracture to her left hand, multiple fractures to the left
lower leg involving her knee and multiple fractures to the left foot. She
neither sustained a head nor brai n injury. She visited the scene of the
accident two months later after her discharge from the hospital. She did not
have any physical or mental pre-accident impediments that could have
prevented her to drive that night.
[6] Dr Konrad Walter Lötter, of D u Métier Technical investigations and
Consultants (Pty) Ltd testified as an accident reconstruction expert. He is a
mechanical engineer with a BEng ( Mech) from the University of Pretoria
obtained in 1992 . His expertise was not disputed. He compiled a report
dated 13 March 2021, buttressed with oral testimony on how in his opinion
the accident occurred. He relied on a copy of the accident report form (AR)
furnished by the South African Police Services (SAPS) , electronic
photographs of the two vehicles which included the left front wheel of the
Ford Ranger, copies of a video clip taken of a screen shot where the original
video was displayed and a copy of a document from the insurance company
with photos indicating a mark on the centre line of the road. Plaintiff’s father
took Mr Lötter to the scene for inspection on 25 February 2021 . Before the
inspection he was furnished with information and photographs by the
insurance company. He also inspected the one tyre of the Ford Ranger and
analysed Google Earth images.
[7] According to Lötter the N12 comprises two normal driving lanes . Its
dimension areas are the following: the northbound lane is approximately
3.7m wide with an emergency lane of 1.85m wide; the southbound lane is
approximately 3.85m wide with an emergency lane of 1.8m wide. Lötter
opines that the accident happened 150m after the insured driver had
executed a curve indicated by a visible deep gorge mark which was
highlighted on the road by the insurance investigators and not by him. The
final resting positions were also pre -marked before his inspection with the
letters CL and TP which were refer ences to client and third party ,
respectively. The Ford Ranger rested on the approaching side of the road
about 3.6m on the side from which the plaintiff’s vehicle (Toyota Yaris) was
travelling. The Yaris rested close to the centre line . Lötter conceded that it is
not possible to estimate the location of rest of the vehicles from the video
clip.
[8] This is what Lötter said regarding the tyre and wheel of the Ford Ranger:
There were signs of damage to the tyre which caused him to examine it in
more detail. He observed that the tyre had minimal run -flat damage ; the
damage to the rim showed deep uneven penetrations into the rim, and
opined that it was not caused by contact with the curb but probably with the
metal components of the Yaris during impact; and further that the lettering on
the tyre showed signs of scrape marks the appearance of which matches the
rubbing marks on the upright curb.
rubbing marks on the upright curb.
[9] Lötter referred to the version of the insured driver furnished to the police at
the scene and recorded in the accident report:
‘Driver of vehicle A alleges that he was travelling straight, [and] he saw a
white vehicle from nowhere [which] bumped into him.’
The policeman made a note that the other driver was also injured, and he
could therefore not speak to “them”. Lötter disagreed with the version of the
insured driver contending that it would have meant that he travelled straight
and did not see the Yaris approaching. According to him it was clear from his
analysis that the damages to the two vehicles show that there was a
significant angle at the time of impact. If the version of the insured driver is
accepted, it would mean that the Yaris would have appro ached the Ranger
at an angle from its left and off the road. He maintained that based on the
perception reaction time of the driver of 1.5 seconds, the driver of the Yaris
(plaintiff), in reaction to the Ford Ranger swerving, started to reduce speed.
[10] Plaintiff’s attorneys filed a Notice in terms of Rule 36(10) of the Uniform
Rules of Court on 05 December 2022 informing the defendant of plaintiff’s
intention to tender in evidence closed circuit television footage (CCTV)
depicting the accident. The defendant was called upon to admit the CCTV
footage within 10 days of receipt of the notice failing which the said footage
would be received in evidence on production thereof without further proof. Mr
Mogano did not file any objection. A video clip which is 6 s econds long was
made available to the Court to view.
[11] Lötter’s testimony regarding the video clip was firstly, that it was taken from a
security camera close to the scene of the accident. Lötter, however, testified
that because the video clip would have lost some clarity and the frames
would have been irregular in appearance due to synchronisation between
the camera and the screen, he selected intervals of 10 frames in an attempt
to indicate the location of the headlights of the Yaris, the distances from the
right-hand edge of the video image . He was able to determine the change in
right-hand edge of the video image . He was able to determine the change in
distance over time. He deduced that the Yaris was traveling at a constant
speed considering the lines over the ten frames. He further added that the
headlights of the Ranger as it entered the frame appeared to be spaced wide
which could indicate an angled approach of the Ranger at the time of impact.
[12] Lötter conceded that he limited the video clip to what is visible. He did not
have the original video but worked on the reproduced copy. There is a side
glare from the headlights in contrast to the Ford Ranger flash of lights facing
the camera, and making the quality of the picture poor and unlikely to see
brake lights and close to impossible to make a finding based on whether
brake lights were on or off. I must state that the quality of this CCTV video
clip was very poor and despite having watched i t several times I found it
unhelpful and will not attach weight to what it purported to depict.
[13] Lötter confirmed that he resides in Centurion and that the scene of the
accident was pointed out to him by the plaintiff’s father. Although the
accident occurred on 03 February 2021, he only visited the scene on 25
February 202 1. He did not verify whether there could have been other
accidents between the two dates or not. He however confirmed that there
were truck skid marks, of an unspecified age, depicted on photo 13 which he
testified were irrelevant and disregarded them . He stated that he did not
make the mar kings on the road depicted on photo 17 attached to his report
but that those markings were furnished to him by the insurance company.
The person who made the markings was neither identified nor testif ied.
Lötter clarified that the mark on the curb was pointed out by the plaintiff’s
father but that he also saw it on the scene of the accident.
[14] Lötter maintained that photo 3 had a visible mark on the curb which was
linked to the accident in this instance. It was put to him that the mark was not
visible on photo 3. He then, in an effort to justify his stance, explained that he
has zoomed in and enhanced it as in photo s 13 and 14 but he had spotted
has zoomed in and enhanced it as in photo s 13 and 14 but he had spotted
the mark. It was further put to him that photo 13 had other tyre marks . His
response was that, as stated, he had excluded the other marks as they were
truck marks and unrelated to this accident. He further stated that those
additional marks were scuff marks and not brake marks.
[15] Lötter was further referred to a mark with white spots on the right side of the
road. He explained that it was just to indicate some identifiable marks on the
scene. Lötter testified that he cannot dispute that when the Ranger hit the
curb the distance between the Ranger and the Yaris was 57m and
consequently the Ranger swerved to the other lane . He disagreed with the
proposition that had the plaintiff at that moment braked and stopped she
could have avoided the accident and alluded to the 1.5 second reaction time
and speed reduction happening in 0.8 seconds.
[16] The last witness for the plaintiff was her father, Mr Jaco Van der Merwe. He
was not present when the collision occurred . He was at home sleeping and
was awakened by a telephone call from the hospital informing him that his
daughter was in hospital after being involved in an accident. He rushed to
the hospital first and thereafter went to the scene to fetch her belongings
(laptop and handbag) from her vehicle. Both vehicles were on the left driving
surface of the road. He returned to the hospital. When asked whether he had
pointed out the scene to the reconstruction expert he responded in the
negative adding that he had pointed out the marks made on the road. It was
further put to him that he was the one who kept contact with the police and
had access to the police docket which he denied, stating that he only saw
the accident report at their attorney’s office.
[17] The plaintiff closed her case, and the defendant applied for absolution from
the instance. The correct approach to an application for absolution at the end
of a plaintiff’s case was stated by Harms JA in Gordon Lloyd Page &
Associates v Rivera1:
‘The test for absolution to be applied by a trial court at the end of a plaintiff's
case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA
403 (A) at 409G – H in these terms:
'…(W)hen absolution from the instance is sought at the close of plaintiff's
'…(W)hen absolution from the instance is sought at the close of plaintiff's
case, the test to be applied is not whether the evidence led by plaintiff
1 2001 (1) SA 88 (SCA) at 92 – 93. See also De Klerk v Absa Bank Ltd 2003 (4) SA 315 (SCA) at 323.
establishes what would finally be required to be established, but whether
there is evidence upon which a Court, applying its mind reasonably to such
evidence, could or might (not should, nor ought to) find for the plaintiff.
(Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty)
Ltd v Adelson (2) 1958 (4) SA 307 (T).)' This implies that a plaintiff has to
make out a prima facie case – in the sense that there is evidence relating to
all the elements of the claim – to survive absolution because without such
evidence no court could find for the plaintiff.’
[18] I refused absolution. Defendant closed its case. As pointed out by Herbstein
and Van Winsen 2 the reasoning is different from that applicable when the
court comes to consider, after having heard the evidence for the plaintiff and
the evidence, if any, tendered for the defendant, whether to grant absolution
from the instance at the close of the defendant’s case. The enquiry then is:
‘Is there evidence upon which the court ought to give judgment in favour of
the plaintiff?3 What stands for determination is whether or not the defendant
should be held liable for injuries sustained by the plaintiff in a motor vehicle
accident.
[19] The Constitutional Court in Lee v Minister of Correctional Services 4held that
there can be no liability if it is not proved, on a balance of probabilities, that
the conduct of the defendant caused the harm. The parties had agreed
during the pretrial conference dated 03 February 2023 that the plaintiff bears
the onus of proof . Herbstein and Van Winsen 5 explained the following
pertaining to the burden of proof:
‘In Pillay v Krishna,6 Davis AJA stated the three basic rules which govern the
incidence of the burden of proof – the onus probandi, which is a matter of
substantive law and not a question of evidence as:
2 The Civil Practice of the High Courts of South Africa, Fifth Edition, Volume 1, Juta, page 921
3 Ibid De Klerk para 38
4 2013 (2) SA 144 (CC) para 39
3 Ibid De Klerk para 38
4 2013 (2) SA 144 (CC) para 39
5 The Civil Practice of the High Courts of South Africa, Fifth Edition, Volume 1, Juta, at 895
6 1946 AD 946 at 951 - 954
(a) If one person claims something from another in a Court of law, then he
has to satisfy the Court that he is entitled to it.
(b) Where the person against whom the claim is made is not content with a
mere denial of that claim, but sets up a special defence, then he is
regarded qouad that defence as being the claimant. For his defence to
be upheld he must satisfy the Court that he is entitled to succeed on it.
(c) He who asserts, proves and not he who denies, since a denial of a fact
cannot naturally be proved provided that it is a fact that is denied that
the denial is absolute.
Davis AJA went on to say:
‘But I must make three further observations. The first is that, in my opinion,
the only correct use of the word ‘onus’ is that which I believe to be its true
and original sense (cf D.31.22), namely, the duty which is cast on the
particular litigant, in order to be successful, of finally satisfying the Court that
he is entitled to succeed on his claim, or defence, as the case may be, and
not in a sense merely of his duty to adduce evidence to combat a prima facie
case made by his opponent. The second is that, where there are several and
distinct issues, for instance a claim and a special defence, then there are
several and distinct burdens of proof, which have nothing to do with each
other, save of course that the second will not arise until the first has been
discharged. The third point is that the onus, in the sense in which I use the
word, can never shift from the party upon whom it originally rested. It may
have been completely discharged once and for all, not by any evidence
which he has led, but by some admission made by his opponent on the
pleadings (or even during the course of the case), so that he can never be
asked to do anything more in regard thereto; but the onus which then rests
upon his opponent is not one which has been transferred to him: it is an
entirely different onus, namely the onus of establishing any special defence
entirely different onus, namely the onus of establishing any special defence
which he may have. Any confusion that there may be has arisen, as I think,
because the word onus has often been used in one and the same judgment
in different senses, as meaning (1) the full onus which lies initially on one of
the parties to prove his case, (2) the quite different full onus which lies on the
other party to prove his case on a quite different issue, and (3) the duty on
both parties in turn to combat by evidence any prima facie case so far made
by his opponent: this duty alone unlike a true onus, shifts or is transferred.’
[20] This case pivots on the reconstructed evidence of Lötter. Plaintiff claimed
amnesia while her friend, Zan-Marie Olivier, had passed on. The injuries that
the plaintiff sustained have been fully described above. Based on these
injuries it is unfathomable why the admitting or treating doctor was not called
to explain the correlation between her injuries to the hand, leg and foot and
the amnesia that she claims to have suffered.
[21] In PriceWaterhouseCoopers Incorporated and Others v National Potato Co -
operative Ltd and Another7
‘[1] The basic principle is that, while a party may in general call its
witnesses in any order it likes, it is the usual practice for expert
witnesses to be called after witnesses of fact, where they are to be
called upon to express opinions on the facts dealt with by such
witnesses. While the conduct of the trial is usually a matter for the
parties to determine as they present their cases, I have no doubt
that, in the exercise of a judge’s power to control trial proceedings,
the judge may intervene to ensure that they are conducted in a
manner that avoids delay and the unwarranted escalation of costs.
Two courses of action were open to the judge. The first would have
been to require NPC to identify the hearsay evidence that it wished
to have admitted and make application for its admission on any
available ground, and then to make a ruling on its admissibility. Such
a ruling could always have been revisited at a later stage of the trial
if necessary. The second, insofar as it was indicated that witnesses
if necessary. The second, insofar as it was indicated that witnesses
would be called to substantiate the hearsay evidence, was to require
that Mr Collett’s evidence stand down until such evidence had been
7 [2015] 2 All SA 403 (SCA) para 80
led and was properly before the court. That would have been an
appropriate and permissible course for the judge to adopt. Instead
Mr Collett was allowed to continue unchecked.’
The Court further remarked8
‘[99] Lastly when dealing with the approach to an expert witness I have
found helpful the following passage from the judgment of Justice
Marie St-Pierre in Widdrington:
“Legal principles and tools to assess credibility and reliability
[326] “Before any weight can be given to an expert’s opinion, the
facts upon which the opinion is based must be found to
exist”
[327] “As long as there is some admissible evidence on which the
expert’s testimony is based it cannot be ignored; but it
follows that the more an expert relies on facts not in
evidence, the weight given to his opinion will diminish”.
[328] An opinion based on facts not in evidence has no value for
the Court.
[329] With respect to its probative value, the testimony of an
expert is considered in the same manner as the testimony of
an ordinary witness. The Court is not bound by the expert
witness’s opinion.
[330] An expert witness’s objectivity and the credibility of his
opinions may be called into question, namely, where he or
she:
8 Ibid para 99
• accepts to perform his or her mandate in a restricted
manner;
• presents a product influenced as to form or content by
the exigencies of litigation;
• shows a lack of independence or a bias;
• has an interest in the outcome of the litigation, either
because of a relationship with the party that retained
his or her services or otherwise;
• advocates the position of the party that retained his or
her services; or
• selectively examines only the evidence that supports
his or her conclusions or accepts to examine only the
evidence provided by the party that retained his or her
services.’
[22] It is inexplicable that the plaintiff could claim amnesia without any
substantiation thereto. Her father’s evidence is of no consequence and
unhelpful. Mr Lötter has conceded to relying on information furnished by the
insurance company including the already marked points at the scene of the
accident where none of the insurance company investigators were called to
confirm the probative value of the evidence that he relied on. I have already
commented on the poor quality of the video clip from which he a lso drew his
conclusions. Although Lötter claims to have used his own expertise in
arriving at his conclusion, his opinion seems to be based on tenuous factors
that I am unable to attach value to and from sources upon whose credibility
the probative value of such evidence depends, have not been called to
testify. There was no application to this Court to admit such evidence as
contemplated in s 3(1) of the Law of Evidence Amendment Act 45 of 1988.
The inability of the plaintiff to testify on the crucial aspect of how the accident
occurred coupled with her failure to lead medical evidence in relation to her
amnesia leaves a deficit in her case which cannot be cured by the accident
reconstruction expert.9
[23] Regard being had to the evidence in its totality I cannot find that the plaintiff
has discharged her onus of proving that the defendant was responsible for
the collision. There is insufficient evidence to rule in her favour.
[24] In the result, the following order is made:
The plaintiff’s claim is dismissed with costs on party and party scale.
MAMOSEBO ADJP
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
For the plaintiff: Adv. H.E De la Rey
Instructed by: Haarhoffs Inc
For the defendant: Mr. A. Mogano
Instructed by: The State Attorney
9 See Road Accident Fund v Madikane (1270/2018) [2019] ZASCA 103 (22 August 2019)