SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: 739/2023
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
DENZIL EGON WORTMANN Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Heard on: 29/04/2025 & 30/04/2025
Delivered on: 15/08/2025
Summary: Action for damages. Claim against the Road Accident Fund – Bodily
injuries. Plaintiff claim ing damages for past medical expenses, loss of earnings or
earning capacity and general damages. Liability and quantum separated. Failure to
observe safe following distance. Failure to call relevant and available witnesses –
adverse inference drawn.
ORDER
In the result, the following order is made:
1. The plaintiff’s claim is dismissed with costs.
JUDGMENT
MAMOSEBO ADJP
[1] The plaintiff, Mr Denzil Egon Wortmann, claims damages to the tune of
R9,254,703.00 against the Road Accident Fund (RAF) arising from a
collision which occurred on 01 September 2021 on the N12 Highway
between Kimberley and Modderrivier between a Volkswagen Kombi with
registration numbers and letters K[...] driven by the plaintiff and a Toyota
Land Cruiser bakkie with registration numbers and letters C[...] driven by Mr
Ivan Jacobs (the insured driver). The merits were separated from the
quantum as contemplated in Rule 33(4) of the Uniform Rules of Court.
[2] The issue that stands for determination is whether the RAF should be held
liable for the collision which the plaintiff contends was caused by the sole
negligence of the insured driver.
The plaintiff’s evidence
[3] The plaintiff is an employee of OUTsurance insurance company in
Centurion. On 01 September 2021 he was the driver of one of three
Volkswagen Kombis from Pretoria on a business trip to attend an executive
conference in the Northern Cape. He had three passengers. He drove at a
speed of 120 km/h. He had followed the Land Cruiser for a while and without
warning or apparent reason the Land Cruiser unexpectedly brake d. He
heard screeching tyres like an emergency stop and swerved right towards
the oncoming lane assuming that it would be safe to overtake the Land
Cruiser which he estimated to have been 100 meters ahead of him. As he
drew closer, the plaintiff slammed on his brakes and veered to the left. His
Kombi knocked the Land Cruiser at the left rear. The insured vehicle did not
give an indication or warning that it was turning right. Plaintiff did not notice
the indicator light of the insured vehicle flickering. After the accident medical
personnel arrived and he was conveyed to hospital. He denies not having
observed a safe following distance.
[4] The plaintiff called Mr Barry Grobbelaar, a forensic engineer at Forensys
Engineering Dynamics (Pty) Ltd, who holds an MEng (Mechanical), MSAE,
MSAGMJ, as the accident reconstruction expert for the reconstruction of the
accident. His qualifications and expertise were not disputed. He compiled a
report dated 11 May 2023. He relied on a copy of the Accident Report (AR)
form furnished by the South African Police Services (SAPS), colour copies of
photographs of the accident site and damaged vehicles attached to the
papers as Annexure C, as well as copies of the warning statements of
Messrs Ivan Jacobs and Gift Simphiwe Mkabiti. He also inspected Google
Earth images to obtain a plan view and aerial view of the accident site. Mr
Grobbelaar further physically inspected the accident site on 29 September
2022, a year later. There were no brake marks on the scene.
[5] Grobbelaar testified that he measured the width of each lane . Photo 3 in
Appendix B taken in the direction of travel of the Kombi and the Land Cruiser
shows the width between the centre line and the emergency line of the left
lane to be 3.8m. The shoulder of the road from the emergency line to the
edge of the road is 2.1m. From the centre of the road to the emergency line
of the oncoming lane is 3.8m and from the emergency line to the edge of the
road 2m. The surface of the road is tarred, and the road markings and
visibility were reportedly good. The road signs were clearly visible and in
good condition. The road is straight and flat. The N12 is a national road with
the speed limit of 120km/h.
[6] According to Grobbelaar and as depicted at photos C16 and C17 the impact
damage to the Kombi was more on the right front which was entirely forced
rearwards. The right A -pillar was buckled but the left A -pillar is still intact.
After the collision the plaintiff’s vehicle rested at the extreme left and off the
tarmac. The Land Cruiser rotated clockwise and rolled and came to rest on
tarmac. The Land Cruiser rotated clockwise and rolled and came to rest on
its left side at an angle across the northbound lane in the emergency lane
opposite the entrance to an Eskom substation and facing more or less
northeast towards Hopetown on the tarmac as depicted on photo C19. The
Kombi rested completely off the road on the left hand side towards
Hopetown. The impact damage to the Land Cruiser was to its rear leaving
the spare wheel at an angle to the left pushed inwards and forward.
[7] On the explanation pro ffered by the plaintiff, Grobbelaar opined that the
Kombi must have swerved to the right due to the sudden skidding (braking)
marks of the Land Cruiser which half-mooned to the right; and that plaintiff
must have swerved left to pass the Land Cruiser, but the collision occurred .
According to Grobbelaar, there are tyre marks in the lane towards Kimberley
with a curve to the left crossing the dotted centre line caused by the Kombi.
This indicated a discontinuity (also known as a kink) just across the broken
centre line where the curvature of the marks changes abruptly. The
inference is that an external force caused the kink . In other words, the
collision with the rear of the Land Cruiser slowed the Kombi down causing
the sudden change in curvature of the tyre marks. The point of impact was
on the right wheel just to the centre line. The Land Cruiser was at an angle in
the process of turning to the right when the collision occurred. According to
Grobbelaar the presence of a gouge mark in the tarred surface of the road
just forward of the kink confirms the area of colli sion just to the left of the
broken centre line. The Land Cruiser’s left rear was on the left hand side of
the broken centre line whilst the right rear was on the right hand side.
[8] This is what Grobbelaar recorded at clause 9.4 of his report:
‘It is clear that there was some distance between the end of the dark tyre
marks (and lighter marks curving to the right) deposited by the Landcruiser,
and the area where the collision occurred as can be seen in photograph C21
and can also be seen in the aerial view of Appendix A3. This confirms that
the Landcruiser was probably turning to the right when the collision occurred,
with the front of the vehicle then being in or mostly in the northbound lane
with the front of the vehicle then being in or mostly in the northbound lane
(towards Kimberley ) due to the Landcruiser being at an angle to its right
whilst turning. A rough indication of the distance between the end of the dark
tyre marks of the Landcruiser and the area where the collision occurred is
that it was approximately 6m when considering that the space between two
white lines of the broken centre line was measured to be approximately 7m
at the accident site during the inspection. This distance can be seen in the
aerial view of appendix A3.’
Grobbelaar could not establish whether the right indicator light of the Land
Cruiser could have been on or off prior to the vehicle turning to the right and
left that aspect for evidence as he was not an eye-witness.
[9] In as far as the distance between the Kombi and the Land Cruiser is
concerned taken from the version of the plaintiff who had indicated that he
was approximately 100m away from the Land Cruiser when he suddenly saw
the smoke from the skidding tyres of the Land Cruiser, Grobbelaar, opined
that for a vehicle traveling at 110km/h to 120km/h the driver would have
required a distance of approximately 61m to 81m to brake his vehicle to a
stop. He factored in the reaction time. Grob belaar further said at clause 14.1
that it was not possible for him to calculate with accuracy the speed of the
Kombi prior to the collision due to there being insufficient accurate
information available to do so.
Plaintiff closed his case.
Defendant’s case
[10] Mr Jacobs was the driver of the Land Cruiser that was involved in the
collision with the plaintiff’s Kombi. He is an employee of Eskom and has
been for the past 16 years and currently occup ies the position of Senior
Technical Official. He has been a licensed driver for more than 20 years. He
was driving from Kimberley to the Ri tchie Eskom substation . He is familiar
with the N12 as he visits the substation at least six times per month to
conduct inspections.
[11] On 01 September 2021 he was in the company of Mr Mkabiti. He was aware
of other vehicles that were following him . The plaintiff’s Kombi was following
another Kombi that was immediately behind his vehicle. In other words, the
plaintiff was the second vehicle from the Land Cruiser . As he approached
the turn-off road, he signalled his intention to turn right towards the Eskom
substation. He was driving on the correct side, the left side. He observed a
Kombi approaching from behind him at a high speed and remarked ‘here
comes trouble’ . The Kombi was driving on the right , incorrect side of the
road. The overtaking Kombi bumped the Land Cruiser on its left rear. The
Land Cruiser went airborne and came to rest on the substation entrance
facing oncoming traffic. Jacobs said he was travelling at a reduced speed of
between 80 – 90km/h but just before the turn off he had reduced the speed
to 20 km/h. He denies applying brakes abruptly in front of the plaintiff’s
Kombi. He further denies that he could have missed the turn off to the
substation, as suggested to him, which could have caused him to abruptly
apply his brakes. He maintained his stance that this was a road well -
travelled by him. The stepladder that was at the back of the Land Cruiser did
not, as was suggested, obstruct his rear view when using the central console
mirror. The accident happened between 12:00 and 13:00 , in broad, clear
daylight.
[12] Mr Mkabiti is a Senior Technical Officer at Eskom and was a passenger in
the Land Cruiser. His testimony corroborates Jacobs and that of Cst Mohau
Innocent Setlhatse in material respects, particularly in respect of the Land
Cruiser reducing speed in preparation to turn right, that the indicator was
switched on and the averments by his colleague overall. He heard the
screeching of tyres and felt the impact from behind. Their Land Cruiser went
airborne and came to rest on its side. The driver’s door was forced open and
they both exited the vehicle through it. Mkabiti took pictures of the scene and
the Land Cruiser. There was a Kombi besides the plaintiff’s which had also
stopped at the scene . He observed through their interactions that they were
travelling together. The two Kombis had been following the Land Cruiser
from the flyover intersection to wards Jacobsdal. The collisi on occurred as
the second Kombi behind them was overtaking. The Kombi that was
immediately behind the Land Cruiser managed to avoid the accident by
immediately behind the Land Cruiser managed to avoid the accident by
coming to a halt while the one behind it was overtaking. His colleague had
already started to execute a turn. He denies that he slammed the brakes
abruptly. The police and paramedics arrived at the scene and the injured
were conveyed to Gariep Hospital. He was interviewed by the police officer
who compiled the accident report form, the said Cst Mohau Innocent
Setlhatse, attached to the Modderrivier police.
[13] Cst Setlhatse was doing patrol duty in the Ritchie area when he received a
call reporting the accident . Upon his arrival he observed the Eskom vehicle
(Land Cruiser) lying on its side and the Volkswagen Kombi was off the road.
The passengers inside the Kombi were injured. Paramedics were
summoned. He obtained the injured people’s names and addresses and
attended to the Land Cruiser occupants.
[14] Cst Setlhatse took the statement of Mr Gift Simphiwe Mkabiti because the
driver of the Land Cruiser , Mr Ivan Jacobs, was also injured. Mr Mkabiti
explained how the accident had taken place. Setlhatse and Mkabiti
communicated in Setswana, and he wrote the statement in English. He is
Setswana speaking but is proficient in English. The explanation made to him
regarding the indicator of the Land Cruiser was that it was switched on while
the vehicle was still traveling straight , thus before the driver executed the
right turn. This statement was elicited under cross -examination, and
therefore not hearsay.
The defendant closed its case.
[15] Mr van Onselen, for the plaintiff , attacked the credibility of the defendant’s
witnesses mainly because their viva voce evidence in certain instances
somewhat differed from their police statements. The principle regarding
contradictions in these kinds of circumstances was dealt with in S v
Mafaladiso1 where the court enunciated:
‘The juridical approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such as, inter alia,
between her or his viva voce evidence and a previous statement) is, in
principle (even if not in degree), identical. Indeed, in neither case is the aim
to prove which of the versions is correct, but to satisfy oneself that the
witness could err, either because of a defective recollection or because of
dishonesty. The mere fact that it is evident that there are self -contradictions
must be approached with caution by a court. Firstly, it must be carefully
must be approached with caution by a court. Firstly, it must be carefully
1 2003 (1) SACR 583 (SCA) at 593i – 594h (English version quoted from the headnote)
determined what the witnesses actually meant to say on each occasion , in
order to determine whether there is an actual contradiction and what is the
precise nature thereof. In this regard the adjudicator of fact must keep in
mind that a previous statement is not taken down by means of cross -
examination, that there may be language and cultural differences between
the witness and the person taking down the statement which can stand in
the way of what precisely was meant , and that the person giving the
statement is seldom, if ever, asked by the police officer to explain their
statement in detail. Secondly, it must be k ept in mind that not every error by
a witness and not every contradiction or deviation affects the credibility of a
witness. Non -material deviations are not necessarily relevant. Thirdly, the
contradictory versions must be considered and evaluated on a holistic basis.
The circumstances under which the versions were made, the proven
reasons for the contradictions, the actual effect of the contradictions with
regard to the reliability and credibility of the witness, the question whether
the witness was given a sufficient opportunity to explain the contradictions -
and the quality of the explanations - and the connection between the
contradictions and the rest of the witness' evidence, amongst other factors,
to be taken into consideration and weighed up. Lastly, there is the final task
of the trial Judge, namely to weigh up the previous statement against the
viva voce evidence , to consider all the evidence and to decide whether it is
reliable or not and to decide whether the truth has been told, despite any
shortcomings. (At 593e – 594h.)’ (emphasis added)
[16] As alluded to earlier, Cst Setlhatse compiled the accident report sourcing the
information from Mkabiti, the Land Cruiser passenger. He wrote:
‘Driver ‘A’ alleged that while he was driving from Modder rivier to Hopetown
direction and he tried to indicate …and he suddenly saw Driver ‘B’ with VW
direction and he tried to indicate …and he suddenly saw Driver ‘B’ with VW
motor vehicle and bumped on the Eskom vehicle from the back and the
vehicle got multiple damages and passengers were all traumatised and
sustained severe injuries and were taken to Hospital for further medical
assistance.’
16.1 The viva voce evidence of Mkabiti clarified that he was a passenger
and was the one who gave the information to Cst Setlhatse and not
his colleague who was the driver.
16.2 His colleague did not ‘try to indicate’ as captured by Cst Setlhatse
but indicated and reduced speed in preparation to turn to the right.
16.3 The discrepancy or inconsistency whether the vehicle was still
straight or had turned slightly to the right at the time of the collision is
of no consequence considering that the collision occurred from
behind.
[17] The plaintiff’s version differed from that of the defendant in several important
respects. He testified that Jacobs gave no signal of his intention to turn to
the right; that his vehicle was the only one following the Land Cruiser and
that there was no other Kombi between his vehicle and the Land Cruiser ;
that Jacobs applied his brakes abruptly giving him no safe options to avoid
the collision; that he drove at the permissible speed of between 110 km/h
and 120 km/h and that he had maintained a safe and reasonable following
distance.
[18] Plaintiff was a single witness in as far as direct evidence is concerned. The
trite principle was enunciated by the Supreme Court of Appeal (SCA) in Elgin
Fireclays Ltd v Webb2 that if a party fails to place the evidence of a witness,
who is available and able to elucidate the facts, before the trial Court this
failure leads naturally to the inference that he fears that such evidence will
expose facts unfavourable to him. But the inference is only a proper one if
the evidence is available and if it will elucidate the facts. Plaintiff had three
witnesses in his own vehicle and colleagues from the other Kombi but failed
to call any of them to corroborate his evidence , particularly on whether the
Land Cruiser had applied brakes abruptly before turning right; on whether
the indicator was flickering; and whether there was a Kombi between the
the indicator was flickering; and whether there was a Kombi between the
plaintiff’s Kombi and the Land Cruiser . No explanation was prof fered why
they were not called.
2 1947 (4) SA 744 (A)
[19] The plaintiff’s and defendant’ s versions are mutually irreconcilable. The
correct approach enunciated by the SCA where a court is faced with
diametrically opposed versions is to be found in Stellenbosch Farmers’
Winery Group Ltd and Another v Martell Et Cie and Others3.
‘The technique generally employed by courts in resolving factual disputes
where there are two irreconcilable versions before it may be summarised as
follows. To come to a conclusion on the disputed issues the court must make
findings on (a) the credibility of the various factual witnesses , (b) their
reliability, and (c) the probabilities. As to (a), the court's finding on the
credibility of a particular witness will depend on its impression of the veracity
of the witness. That in turn will depend on a variety of subsidiary factors
such as (i) the witness' candour and demeanour in witness -box, (ii) his bias,
latent and blatant, (iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions, (v) the
probability or improbability of particular aspects of his version, and (vi) the
calibre and cogency of his performance compared to that of other witnesses
testifying about same incident or events. As to (b), a witness' reliability will
depend, apart from the factors mentioned under (a)(ii), (iv) and (v), on (i) the
opportunities he had to experience and observe the event in question and (ii)
the quality, integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or improbability of
each party's version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step, determine
whether the party burdened with the onus of proof has succeeded in
discharging it.’
[20] The plaintiff was the only factual witness in his own cause and augmented
[20] The plaintiff was the only factual witness in his own cause and augmented
his evidence with the evidence of the collision reconstruction expert , Mr
Grobbelaar. The Supreme Court of Appeal in Representative of Lloyds and
3 2003 (1) SA 11 (SCA) para 5
Others v Classic Sailing Adventures (Pty) Ltd 4 made these instructive
remarks:
‘Where there is eyewitness or direct evidence of an occurrence, this may
render the reconstructions of experts less relevant or even irrelevant : see
Parity Insurance Co Ltd v Van den Bergh [1966 (4) SA 463 (A) at 476B – H]
and Van Eck v Santam Insurance Co Ltd [1996 (4) SA 1226 (C) at 1229H -
1230B see also the cases cited at 1229I – 1231H], where the court said that
while it was not unusual for parties to tender expert evidence to determine
the cause of a collision, the expert's evidence is 'inevitably based on
reconstruction and cannot conceivably bear the same weight as direct, eye -
witness testimony of the event in question'. See also Michael and Another v
Linksfield Park Clinic (Pty) Ltd and Another [2001 (3) SA 1188 (SCA) [2002
(1) All SA 384) para 40].’
[21] The plaintiff’s version is that the driver of the Land Cruiser abruptly slammed
on his brakes forcing him to immediately swerve to the right on to the
oncoming lane because he thought it was safe to do so. He says he was
about 100 meters behind the Land Cruiser. He was narrowing the distance
between himself and the Land Cruiser which was in the process of turning
right and swerved to the left which resulted in the collision.
[22] Mr van Onselen, relying on Bata Shoe Company 5 submitted that before
turning right Jacobs failed to clearly and timeously signal his intention to turn
right to warn the following traffic of his intention to turn , and to ensure that it
was opportune for him to do so without endangering others. He submitted
that, therefore, should the court find the indicator of the Land Cruiser to have
been on then the Court is urged to find contributory negligence.
[23] Miller J referred to Cooper’s duties of the driver turning right in S v Olivier 6
and remarked:
4 2010 (5) SA 90 (SCA) para 60 at 107F – H
5 Bata Shoe Co. Ltd. (South Africa) v Moss 1977 (4) SA 16 (WLD)
6 1969 (4) SA 78 (NPD) at 83H – 84B
‘The driver intending to turn to the right, across a route which may be taken
by other traffic, must necessarily bear in mind that he will be undertaking a
potentially dangerous operation …and he must therefore be careful to
'choose an opportune moment to cross … and do so in a reasonable
manner'. (Per VAN WINSEN, A.J.A., in Sierborger v South African Railways
and Harbours, 1961 (1) SA 498 (AD) at p. 504).
This seems to me to be the ultimate test to apply in deciding whether a right -
hand turn of the kind now under consideration was legitimately or culpably
undertaken; the inquiry is: was it opportune and safe to attempt the turn at
that particular moment and in those particular circumstances? Whether it
was opportune and safe, or not, will depend upon whether a diligens
paterfamilias in the position of the driver at that time and in the
circumstances then prevailing would have regarded it as safe. (Cf. Kruger v
Coetzee, 1966 (2) SA 428 (AD) at p. 430). In that inquiry, assumptions which
may have been made by the driver and the extent to which the driver kept
under observation other vehicles, are together with other incidents relevant
to the occasion, factors to be taken very much into account, but no one of
these factors will necessarily or even probably provide the answer to the
ultimate question.’
See also: Cooper, Delictual Liability in Motor Law.7
[24] Regulation 308: General duties of driver or passenger of vehicle on public
road provides:8
(1) No person driving or having a vehicle on a public road shall—
(b) follow another vehicle more closely than is reasonable and
prudent having regard to the speed of such other vehicle and
the traffic on and the condition of the roadway, or more
closely than is prescribed in these regulations;…’
7 W E Cooper, 1996 at 168
8 National Road Traffic Act, 93 of 1996
[25] I am in agreement with the remarks by Van der Linde J in Intercape Ferreira
Mainliner (Pty) Limited v Pro-Haul Transport Africa CC and Another9 that:
‘It seems reasonably clear then that the following driver must keep such a
distance as would enable him/her either to stop, or to swerve, but at all
events to avoid, colliding with the leading vehicle if the leading vehicle were
to stop immediately as a result of a sudden emergency.’
The plaintiff’s duty was to keep a sufficient distance that would enable him to
stop in time to avoid a collision with the leading vehicle, the Land Cruiser.
[26] Based on the evidence set out above, I am satisfied that:
26.1 The eyewitness testimony of Mr Ivan Jacobs, the driver of the Land
Cruiser, as corroborated on all material respects, by that of Mr Gift
Simphiwe Mkabiti, the passenger in the Land Cruiser , was reliable
and that they were honest and credible witnesses;
26.2 According to them Mr Jacobs signalled his intention to turn right by
switching on his indicator and had reduced speed markedly. To the
suggestion for the defendant that Jacobs sped and had almost
overshot the turn -off to the Ri tchie Eskom power station Mr Jacobs
countered that he would not have done so because he has been
visiting the station almost six times per month for inspection, over the
past several years.
26.3 That Jacobs, through his rear-view mirror, observed plaintiff driving
at high speed, over taking the Kombi infront of him and was thus
driving on the incorrect side of the road, facing oncoming traffic. That
act, according to Jacobs and Mkabiti, led to the collision.
26.4 It was common cause that the accident took place during broad
daylight (around 12:00) on a sunny day. The surface of the road was
good and dry.
9 (44350/2012 [2016 ZAGPJHC 134 (3 June 2016) para 28
26.5 The evidence on both sides, plaintiff and defence, from the mouths
of Jacobs, Mkabiti, the plaintiff, (Mr Denzil Egon Wortman n) and his
expert witness, Mr Grobbelaar, is compelling in that had plaintiff
used a safe following distance, not driven at an excessive speed
under the circumstances, kept a proper look out to notice the Land
Cruiser he could and should have stopped his vehicle in time and
avoided the accident.
26.6 Whereas not much criticism can be imputed to the evidence of Mr
Grobbelaar in doing his best, his evidence was not sufficient to
rescue the extremely poor evidence of the plaintiff. On the contrary,
to Mr Grobbelaar’s credit, his evidence on the measured marked
distances and the time estimates demonstrates that, having regard
also to plaintiff’s explanation, there was ample opportunity for him to
have stopped timeously and safely had he observed a safe following
distance.
26.7 The fact that the plaintiff, who bore the onus to prove his case on a
balance of probabilities, did not call any of his several colleagues
who were on the scene to testify, did not advance his cause at all.
[27] Regard being had to the conspectus of evidence I cannot find that the
plaintiff has discharged his onus of proving that the insured driver was
negligent. In short, he gave the signal to turn right timeously and did not
slam his brakes abruptly before turning right . I find that the plaintiff was
solely to blame for the collision and was therefore 100% negligent.
[28] In the result, the following order is made:
1. The plaintiff’s claim is dismissed with costs.
MAMOSEBO ADJP
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
For the plaintiff: Adv. C.R. Van Onselen
Instructed by: Adams & Adams
c/o Stefan Greyling Inc
For the defendant: Mr A. Mogano
Instructed by: The State Attorney