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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 497/2024
In the matter between:
M[...] M[...] K[...] obo M K APPELLANT
and
ROAD ACCIDENT FUND RESPONDENT
Neutral citation: M M K obo M K (Case no 497/2024) [202 5] ZASCA 136
(25 September 2025)
Coram: MEYER, GOOSEN, SMITH and KEIGHTLEY JJA and MODIBA
AJA
Heard: 3 September 2025
Delivered: 25 September 2025
Summary: Action for damages arising from driving of a motor vehicle – issue
of negligence of insured driver settled by agreement – court order recording
liability of Road Accident Fund 56 of 1996 – ordering the furnishing of an
undertaking in terms of s 17(4) (a) of Road Accident Fund Act – trial of
remaining issues proceeding in default of appearance of RAF – trial court
2
dismissing claims on basis of failure to prove injuries and elements of liability –
full court confirming order of the trial court – whether order in respect of
s 17(4)(a) resolved causation of loss – failure to present any evidence at default
hearing dispositive of matter – appeal dismissed.
3
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Limpopo Division of the High Court, Polokwane (Muller
ADJP, Kganyago J and Manzini AJ, sitting as court of appeal):
1 The appeal is dismissed with no order as to costs.
2 The Registrar of this Court is directed to deliver a copy of this judgment to
the Legal Practice Council of South Africa for its further consideration and
attention.
________________________________________________________________
JUDGMENT
________________________________________________________________
Goosen JA (Meyer, Smith and Keightley JJA and Modiba AJA concurring)
[1] The appellant instituted an action for damages against the Road Accident
Fund (the RAF) arising from injuries sustained by her minor child (MK) in a
motor vehicle collision which occurred on 8 October 2013. At the time of the
collision MK was three years old. The action was commenced on 16 October
2018.
[2] On 11 February 2019, the Limpopo Division of the High Court,
Polokwane (the high court), per M G Phatudi ADJP, granted an order that the
RAF is 100% liable for the appellant’s agreed or proven damages. It also
ordered that the RAF must furnish an undertaking in terms of s 17(4) (a) of the
Road Accident Fund Act. 1 The matter thereafter proceeded to trial upon the
remaining issues.
1 Road Accident Fund Act 56 of 1996.
4
[3] The trial on the remaining issues proceeded as a request for default
judgment since there was no appearance for the RAF. On 29 December 2021,
the high court per Semenya DJP (the trial court) dismissed the appellant’s
claims. It made no order regarding the costs. Leave to appeal was granted to the
full court of the high court (the full court). 2 The full court dismissed the
appellant’s appeal on 17 November 2023. This Court granted the appellant
special leave to appeal on 10 April 2024. The appeal was adjudicated in terms
of s 19(a) of the Superior Courts Act.3
[4] In the appeal to the full court and in the appeal to this Court, the appellant
placed considerable store upon the order of the high court which was granted by
Phatudi ADJP (henceforth the Phatudi order). In essence, the appellant’s
contention on appeal was that the trial court was precluded from finding that the
appellant had failed to prove that the minor had suffered injuries in the collision
which caused the loss. The terms of the Phatudi order, it was submitted,
satisfied the question of causation. Accordingly, the trial court was required
only to assess and quantify the loss suffered.
[5] Two issues arise in this matter. The first concerns the effect, if any, of the
Phatudi order upon the adjudication of the matter. The second concerns the
evidential basis upon which the trial court adjudicated the appellant’s claims.
[6] In light of this, it is necessary to set out the circumstances in which the
litigation was conducted before the high court. The appellant was represented
by her attorneys of record throughout the case. The RAF was represented during
the pleading stage and until the so -called merits of the claim were settled. It is
not apparent from the record whether the RAF was represented when the
2 The order is dated 20 May 2022.
3 Superior Courts Act 10 of 2013.
5
Phatudi order was granted. It is, however, clear from the record that after the
Phatudi order and until the matter was finalised before the trial court, the RAF
was not represented. 4 The transcript of proceedings before the trial court
indicates that the matter proceeded as a ‘default’ judgment. The RAF did not
participate in the appeal before the full court. Although the RAF was notionally
represented in proceedings before this Court, it did not participate in the
appeal.5
Circumstances giving rise to the Phatudi Order.
[7] On 7 November 2018, the RAF addressed an offer of settlement to the
appellant’s attorneys. The offer was accepted by the appellant’s attorneys and,
on 5 December 2018, a notice of acceptance of the offer of settlement was filed
at court. The notice attached the accepted offer.6 The offer of settlement reads as
follows:
‘The Road Accident Fund (RAF) has considered the available evidence relating to the
manner in which the motor vehicle accident giving rise to this claim occurred. The RAF has
concluded that the collision resulted from the sole negligence of the RAF’s insured driver.
Consequently, without prejudice, the RAF offers to settle the issue of negligence vis-à-vis the
occurrence of the motor vehicle collision on the basis that the insured driver was solely
negligent in causing the motor vehicle collision.
This offer is limited to the aspect of negligence as to the manner in which the collision
occurred. This offer may not be interpreted or construed in a manner that would have the
RAF concede any other aspect of the claim. To avoid doubt, the RAF reserves all its rights in
law with regards to all other procedural and substantive aspects of the claim. ’ (Emphasis
added.)
4 All of the Uniform Rule 36(9) notices qualifying experts for the purposes of the trial , were filed after the
Phatudi order and all are addressed to the RAF directly. Most were filed in August 2021, shortly before the trial
proceedings.
proceedings.
5 A notice of acting was filed by the State Attorney after special leave to appeal was granted by this Court.
6 The appeal record filed before this Court identifies the notice and the offer as follows: Notice of Acceptance of
Offer of Settlement (Merits) dated 5 December 2018 with attached letter from Road Accident Fund to
Mashabela Attorneys dated 7 November 2018. The notice bears a receipt stamp from the RAF attorneys at the
time dated 6 December 2018 and a receipt stamp by the Registrar of the high court dated 7 December 2018.
6
[8] The offer contained a clause stating that acceptance of the offer would
only be deemed valid if it is accepted in totality. If any additions or alterations
are made, those would be regarded as a counter -offer and would not constitute a
valid agreement unless the counter -offer is accepted. Provision was made for
signature upon acceptance. The offer was accepted as tendered. No counter -
offer was made by the appellant. Apart from this offer, as accepted, there is no
other correspondence or document on record w hich deals with the RAF’s
liability as accepted by it.
[9] It is not known whether the RAF was represented when the case came
before Phatudi ADJP. The Phatudi order contains a customary introduction
which states that ‘having considered the documents filed of record and having
heard the plaintiff and defendant’, it is ordered that:
‘1. The Defendant is liable at 100% of the plaintiff’s agreed or proven damages.
2. The defendant furnishes an undertaking in terms of section 17 (4) (a) of the Road Accident
Fund Act 56 of 1996 of future accommodation in a hospital or nursing home of or rendering
of a service to plaintiff or supplying goods to plaintiff arising out of the injuries sustain by
plaintiff in the motor vehicle collision on the 08 th October 2013, after such costs have been
incurred and upon proof thereof;
3. The aspects of quantum is postponed sine die for determination; and
4. The defendant to pay the plaintiff’s taxed or agreed party and party costs on the High Court
scale within 14 days of taxation or agreement of costs which costs shall include cots of
Counsel and medical experts (if any).’
[10] The terms of this order are inconsistent with the documents which had
been filed of record. The settlement agreement was in respect only of the
negligence of the insured driver. There was no agreement that the RAF was
liable to compensate the appellant for any loss the minor may have suffered.
liable to compensate the appellant for any loss the minor may have suffered.
Furthermore, the RAF had not tendered an undertaking in terms of s 17(4) (a) of
7
the RAF Act, nor could it have, in light of its reservation of all of its procedural
and substantive rights in law.
[11] There is, therefore, a disjuncture between the terms of the settlement
agreement and those of the Phatudi order. This raises real concern about how
the order came to be made in those terms. I shall return to the effect, if any, of
this order hereunder. A further matter of concern, is the nature of the reliance
placed upon the order by the appellant’s legal representatives.
[12] In prosecuting the appeal before the full court reliance was placed upon
the ‘fact’ that an order was made ‘on the undertaking by the [RAF]’. 7 In this
Court, the appellant’s legal representatives averred, in the application for special
leave to appeal, that the RAF had given an undertaking and that it was ‘common
cause’ that the minor had been injured in the collision. 8 This was sustained in
the submissions filed before this Court. This is plainly in conflict with the
express terms of the settlement agreement. There is no evidence that the RAF
had given an undertaking in terms of s 17(4)(a) and that it had thereby conceded
the causal nexus between the injuries suffered and the collision. I shall also
return to this hereunder.
The trial court proceedings
[13] The matter came before the trial court on 8 November 2021. When the
matter was called, counsel for the appellant stated that the matter was
7 K.M.M obo K.M v Road Accident Fund [2023] ZALMPPHC 112 para 40.
8 In the affidavit deposed to in support of the application for special leave it is stated that:
‘The respondent further tendered to furnish a written undertaking assuming liability for the applicant’s future
medical and hospital expenses.’
The affidavit goes on to state:
‘It is common cause that the minor child sustained injuries. These injuries have caused serious impediments to
the minor child. The experts’ reports are in place to substantiate the severity of the injuries. There is no
intervening act. The minor is continuously suffering as a result of injuries sustained in the accident that the
respondent conceded to have occurred. The occurrence of the accident resulted in injuries which are not
disputed by the respondent. In fact, the respondent has conceded to the injuries.’
8
proceeding by way of default judgment in relation to general damages and
future loss of earnings only. The transcript of proceedings indicates that a
‘damages affidavit’ was handed up together with bundles of expert reports. No
viva voce evidence was presented. Following an extensive address and
engagement between counsel and the presiding judge, judgment was reserved.
On 29 December 2021, Semenya DJP delivered a judgment dismissing the
appellant’s claims for delictual damages.
[14] It must be emphasised that despite the reference to a ‘damages affidavit’
and references to affidavits by the experts, no affidavits appear in the record.
This is not to suggest that the record is defective. On the contrary, it points to
the absence of any supporting affidavits. There are a number of occasions in the
transcript when counsel directs attention to an affidavit of an expert only for
such reference to be to the report of the relevant expert. It is the duty of the
attorney prosecuting an appeal on behalf of a client to ensure that a proper
record is placed before this Court. The attorney is obliged to ensure that it is
complete and that it complies with the rules of this Court. 9 There was no
suggestion that the record was incomplete. To the contrary, the attorney
certified that he had complied with the provisions of Rule 8. We can only infer,
therefore, that there were no affidavits deposed to by the experts confirming
their reports. Significantly, there is also no evidence by the appellant, in which
the factual basis of the claims is explained.
[15] The absence of any evidentiary material to confirm the expert reports and
to establish the facts upon which the claims might be adjudicated, is fatal to the
9Rennie NO v Gordon and Another NNO 1988 (1) SA 1 (A) at 20D -F. See SCA rule 8(6)(i) which requires that
the record contains a ‘correct and complete index of the evidence, documents and exhibits in the case’.
9
appellant’s case. In Economic Freedom Fighters and Others v Manuel , this
Court stated:10
‘Thus, in undefended actions in which unliquidated damages are claimed, our courts have
insisted on hearing viva voce evidence in order to make a proper assessment and issue an
appropriate award. In Venter v Nel the court, in dealing with a claim by a plaintiff for
damages she sustained as a consequence of being infected with HIV during a sexual
encounter, noted that it was dealing with an undefended action, and said the following:
“The practice in this Division is to hear some evidence on claims for damages, but
inevitably the enquiry is not as detailed or controversial as it would be were the matter
defended, were the defendant represented by counsel and were the evidence of the witnesses
who testified for the plaintiff tested by way of cross -examination and by the defendant
leading countervailing evidence.”'
[16] As this Court observed in Madibeng Local Municipality v Public
Investment Corporation Ltd 11, the default position in trial actions is that viva
voce evidence be led. That may be dispensed with by agreement and subject to
the trial judge exercising a discretion to permit evidence to be adduced by
affidavit instead. In this case no evidence was presented.
[17] That, in my view, ought to be the end of the matter. The trial court did not
however, deal with the case upon that basis. Rather, the court examined the
‘evidence’ as contained in the myriad expert reports presented on behalf of the
appellant. After a comprehensive assessment of the reports, the trial court
concluded that the appellant had failed to prove that the minor child had
suffered loss arising from injuries sustained in the collision. In coming to this
conclusion, the trial court noted significant and material contradictions between
the expert reports. These related to different accounts of the nature of the
injuries which were said to have been suffered by the minor in the collision. The
injuries which were said to have been suffered by the minor in the collision. The
10 Economic Freedom Fighters and Others v Manuel 2021 (3) SA 425 (SCA) para 100. See also Venter v Nel Nel
1997 (4) SA 1014 (D) on the necessity for evidence to be presented.
11 Madibeng Local Municipality v Public Investment Corporation Ltd [2020] ZASCA 157 ; 2018 (6) SA 55
(SCA) para 26.
10
source of these was the appellant who had provided the experts with an account
of the injuries alleged to have been suffered. Based upon the inconsistent
reports given to the experts and the absence of any medical or hospital reports
which could objectively establish the nature of the injuries, the trial court
concluded that the opinions expressed by the experts were not reliable.
The full court
[18] The trial court granted the appellant leave to appeal to the full court. As
already indicated the principal basis upon which the appeal was pursued was
that the trial court was bound by the Phatudi order. Since it was only concerned
with the assessment of damages, it was not open to the trial court to find that the
appellant had not proved the causal nexus between the injuries arising from the
collision and the loss suffered by the minor.
[19] The full court was therefore called upon to address the argument based
upon the Phatudi order, and in particular the existence of the s 17(4)(a)
undertaking. It was also required to deal with the merits of the trial court’s
findings on the evidence before it.
[20] In relation to this latter aspect, the full court did not address the fatal
defect in the appellant’s case before the trial court. It found, however, that the
trial court was correct in its assessment of the existence of material
discrepancies between the alleged factual basis upon which the experts
expressed their opinions. It found that the trial court’s assessment of the
available evidence was correct. The appellant had failed to establish all of the
elements upon which the RAF could be held liable for damages in delict.
[21] Turning to the Phatudi order, the full court reasoned that a settlement of
the merits does not involve more than a settlement in relation to the negligence
11
of the insured driver. It does not imply that other elements of the delict are
conceded. In relation to the s 17(4) (a) undertaking, the full court took the view
that the furnishing of an undertaking is not a concession in relation to the fact
that injuries were sustained and that they caused harm. It therefore dismissed
the appeal and confirmed the order of the trial court.
The appeal before this Court
[22] An appeal lies against the order of the court below, and not the reasons
advanced in support of that order. I emphasise this because, the broad brush -
strokes of the reasoning of the full court on the effect of the Phatudi order, does
not stand unqualified. A settlement on the ‘merits’ is not always only a
settlement in relation to the negligence element in a delictual claim. It will
depend upon the facts. Furthermore, the furnishing of an undertaking by RAF to
pay future medical costs in terms of s 17(4) (a) could carry the implication that
injuries were sustained for which the RAF is causally liable. Again, this will
depend upon the circumstances in which the u ndertaking is given and,
generally, the facts of the case.
[23] The order presently under appeal is one which dismisses the appellant’s
claims against the RAF. Those were, as presented to the trial court, the claim for
general damages and for loss of earning capacity. The principal question is
whether the trial court correctly dismissed those claims.
[24] A claim in delict might be dismissed upon the failure to prove any one or
more of the elements of the delict. Each of the elements must be proved. In the
case of a claim for compensation for personal injury arising from the driving of
a motor vehicle, the claimant must prove that the insured driver drove the motor
vehicle wrongfully and negligently and that such conduct caused the injuries
suffered by the claimant. It must be established that the claimant suffered harm
12
in consequence of the injuries. Finally, the claimant must quantify the loss in
order to be compensated by determination of a monetary award.
The Phatudi order
[25] If we accept that, despite the provenance of the Phatudi order, it stands
until set aside, then the question is what effect, if any, it could have had upon
the determination of the two heads of damage which the trial court was called to
assess.
[26] The appellant’s case was that the Phatudi order, and in particular the
order requiring an undertaking to be furnished, by necessary implication settled
the question whether the minor child suffered injuries in the collision and that
such injuries had given rise to loss suffered by the minor child. In my view,
there is no substance to the argument. The Phatudi order contains no
determination as to what injuries were suffered in the collision. There is no
separate agreement which informs an understanding of the liability to pay for
future treatment for ‘injuries sustained in the collision’. On the pleadings, the
allegation of injuries was still in issue. In the absence of a determination of the
existence of injuries caused by the w rongful and negligent conduct of the
insured driver and the consequential sequelae, no effect could be given to the
order relating to the s 17(4)(a) undertaking.
[27] In any event, the claims for compensation for general damages and for
loss of earning capacity require the proof of facts which are specific to those
heads of damage. In the case of general damages, these are only payable if the
injury suffered is assessed as serious. In the case of patrimonial loss based on an
impairment of earning capacity, it must be established that the impairment of
capacity arises as a causal consequence of the type of injury suffered.
13
[28] In both instances, there must at least be evidence upon which a court can
find that a particular injury was caused, before it might be determined that the
injury is serious, within the meaning ascribed to the term by the Road Accident
Fund Act or that its consequence will be an impairment of earning capacity.
[29] It simply does not follow that because there exists an undertaking or an
obligation to provide such undertaking, the essential factual basis for an award
under the heading of general damages or loss of earning capacity, need not be
made.
[30] That being so, the existence of the Phatudi order did not relieve the
appellant of the burden to prove the injuries caused by the collision and the
consequences that flowed therefrom.
The trial court’s assessment of the evidentiary basis of the claims
[31] I have already set out the basis upon which the trial court assessed the
‘evidence’ which served before it. It cannot be faulted in this assessment, as the
full court correctly found. But in this case, whatever one might say about the
trial court and the full court’s treatment of the evidence before it, the fact
remains that there was no properly admissible evidence before the trial court
which established that the minor child suffered the injuries upon which the
claim was based. There was therefore, no adm issible and reliable factual
evidence upon which the expert opinions could be premised. The findings of the
trial court and the full court upon this aspect cannot be faulted in any manner.
The consequence is that the appellant failed prove her claim s against the RAF.
The appeal must therefore be dismissed.
[32] Before making the order, I must return to concerns about the conduct of
the appellant’s legal representatives. I have already pointed to the fact that
14
averments and submissions were advanced which are in direct conflict with the
facts disclosed on the record. This is deeply troubling. A legal representative
should under no circumstances conduct themselves in a manner which may
have the effect of misleading a court. 12 Where the matter proceeds in the
absence of an affected party, there is an even higher duty to maintain absolute
fidelity to the facts, especially when a settlement is to be recorded in a court
order. We cannot conclude that this was not done. There is, however, sufficient
indication on the record to warrant a proper investigation by the Legal Practice
Council. We will accordingly direct that a copy of this judgment be forwarded
to the Legal Practice Council for its consideration and such action as it may
decide.
[33] The RAF’s conduct in this matter also cannot escape comment. It is a
matter of grave concern that the RAF was unrepresented during the most critical
phases of the litigation. In the light of its careful reservation of the limits of
admitted liability, its subsequent absence is inexplicable. It may well have been
reckless.13
[34] When the RAF does not participate in the process of adjudicating matters
to finality, the courts seized with the case are placed in an invidious position.
They are required to bring special care to bear, lest an order is made which
compels the RAF to pay damages not proved. It is simply not in the interests of
justice that this should occur. It is to be hoped that the RAF, as an organ of state
12 Incorporated Law Society v Bevan 1908 TS 724 at 731 where Innes CJ described the duty thus:
‘But it implies this, that the practitioner shall say or do nothing, shall conceal nothing or state nothing, with the
object of deceiving the Court; shall put forward no fact which he knows to be untrue, shall quote no statute
which he knows has been repealed, and shall refer to no case which he knows to have been overruled. If he were
allowed to do any of these things the whole system would be discredited. Therefore, any practitioner who
deliberately places before the Court, or relies upon, a contention or statement which he knows to be false, is in
my opinion not fit to remain a member of the profession.’
13 It is worth observing that following the Phatudi order, the particulars of claim were amended to increase the
quantum of the claim from R3 010 000.00 to R12 100 000.00.
15
managing public funds, will take reasonable steps to avoid recurrences of what
occurred here.
[35] I make the following order:
1 The appeal is dismissed with no order as to costs.
2 The Registrar of this Court is directed to deliver a copy of this judgment
to the Legal Practice Council of South Africa for its further consideration
and attention.
________________________
GOOSEN JA
JUDGE OF APPEAL
16
17
Appearances
For appellant: No appearance
Mashabela Attorneys Inc
c/o SMO Seobe Attorneys Inc, Bloemfontein
For respondent: No appearance
State Attorney, Bloemfontein.