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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 024405/22
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 31 AUGUST 2025
SIGNATURE
In the matter between:
S N N M[...] obo N I M M[...] 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 application for default judgment in an action instituted by the plaintiff
on behalf of her minor daughter, N[...], 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 sustained by N[...] in a motor vehicle accident that occurred when she
was a pedestrian who was hit by a motor vehicle in Mhluzi, Middelburg, Mpumalanga
at about 14h00 on 31 October 2019 . At the time of the accident N[...] was 10 years
old.
The RAF’s non-opposition and the separation application
[2] The plaintiff’s pleaded claim encompasses the following relief and heads of
damages allegedly suffered by N[...] as a result of the injuries she sustained in the
accident: (i) an order requiring the RAF to furnish an undertaking as envisaged in
section 17(4) of the RAF Act in respect of future medical care that N[...] will require
arising from the accident ; (ii) damages in the sum of R12 million in respect of future
loss of earnings; and (i ii) damages in the sum of R2.5 million for non-pecuniary loss
(referred to as “general damages”).1
[3] The RAF failed to deliver any notice of opposition, and the plaintiff set the
matter down for default judgment in terms of Rule 31(2)(a).
[4] At the commencement of the hearing for default judgment , the plaintiff’s
counsel sought an order that the claim for general damages be separated and
postponed for later determination in terms of Rule 33(4) on the basis that the
1 The plaintiff’s claim in respect of past medical expenses to the value of R120,000 appears to have
been abandoned by means of an amendment effected shortly prior to the hearing of the application
for default judgment. The quantum of the claimed damages was originally R8 million in respect of loss
of earnings and R1 million in respect of general damages, but these claims were increased by means
of the same amendment, which also converted a claim of R200,000 for future medical expenses into
the one for the section 17(4) undertaking.
administrative 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 a determination that N[...] suffered a “serious injury” (which 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 ) had not been completed . Since a
separation on this basis is commonly convenient in circumstances where the plaintiff
is able to establish the RAF’s liability on ‘the merits’ in terms of the RAF Act (i.e. that
she suffered “bodily injur y … due to the negligence of the driver of the motor
vehicle”),3 I provisionally indicated that I was minded to grant such an order .
However, in view of the conclusion that I have reached in relation to the merits and
the order I have decided to make in relation to the default judgment application, I do
not consider that would be appropriate to grant any such separation.
[5] Furthermore, in view of the conclusion that I have reached below in relation to
the merits of the matter (i.e. that no admissible evidence has been adduced before
me in this application capable of showing that the accident in which N[...] sustained
her injuries was indeed caused by any negligence ) and in view of my decision that
the application for default judgment should be dismissed , it is unnecessary for me to
deal with the remaining elements of the plaintiff’s claims.
The merits
[6] Rule 31(2)(a) provides that where a defendant fails to defend an action and
the claim is not for a debt or liquidated demand (as is the case here) , a plaintiff may
apply for default judgment, upon which “ the court may, after hearing evidence, grant
2 RAF Regulations, published under GN R770 of 2008 in GG 31249 of 21 July 2008, as amended.
3 Road Accident Fund Act, 56 of 1996, s 17(1).
judgment against the defendant or make such order as it deems fit", including an
order dismissing the application for default judgment or granting absolution from the
instance, and an appropriate order as to costs.4
[7] It is well established that the grant of default judgment in terms of this rule is a
matter that falls within the discretion of the court.5 In considering the exercise of this
discretion, it is important to recognise that default judgment does not follow any
finding of law or fact that the defendant against whom it is granted does not have a
defence to the action , but primarily arises because the defendant has failed to
exercise its rights to defend the action in circumstances which are unknown to the
court. It is for this reason that before a Court exercises its discretion in favour of
granting default judgment, it should be satisfied that a valid claim (both factually and
legally) exists upon which a judgment against the defaulting party may be justified.
[8] From a factual perspective, particular provision is made in Rule 31(2)(a) in
relation to unliquidated claims for the hearing of evidence to satisfy the court that the
plaintiff’s case has been proved on a balance of probabilities. This is an important
feature of the court’s discretion, and I do not agree with suggestions that have from
time to time been made that a court faced with a default judgment application may
‘take comfort’ from the fact that Rule 31(2)(b) specifically allows for the rescission of
a judgment granted erroneously in the absence of a party . The rescission procedure
is an exceptional one, and t he fact is that default judgment (as with any other
judgment) is binding and involves the undertaking of the solemn judicial function that
is so important to the proper functioning of our Constitutional democracy. As the
4 Van Loggerenberg et al. Superior Court Practice. (Looseleaf, RS25) Juta, 2024 at D31-9.
5 Id.
Supreme Court of Appeal has confirmed , “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” ,6 although this may be done on affidavit in terms of
Rule 38(2).
[9] In the current matter, t he plaintiff’s particulars of claim allege that N[...] was a
pedestrian at the time of the accident, that she was injured 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 , which took place “ on Mandela Drive , Mhluzi” , was the negligent
conduct of hat driver who “suddenly veered off the road and collided with” her.
[10] The only evidence sought to be adduced before me in the default judgment
application with regard to the circumstances under which the accident occurred was:
(i) the plaintiff’s founding affidavit in support of the application for default judgment ;
and (ii) an accident report apparently completed and signed by an “official” identified
as an “inspector” at 14h50 on 31 October 2019 (i.e. approximately 50 minutes after
the accident took place ), and which bears the stamp of the Steve Tshwete Local
Municipality Traffic Services Department.7
[11] In the affidavit, the plaintiff states that the accident occurred “ at or near
Chocolate and Mandela Drive , Mhluzi … when [the driver’s vehicle] collided with
[N[...]], who was a pedestrian crossing the road from East to West direction at the
6 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.
7 The accident report was sought to be adduced in terms of section 6 of the Civil Proceedings
Evidence Act, 25 of 1965, which provides that: “Any document purporting to bear the signature of any
person holding a public office and bearing a seal or stamp which purports to be the seal or stamp of
the department, office or institution to which such person is attached, shall, on its mere production, be
prima facie proof that such person signed such document.”
time of the accident ”. However, t he plaintiff also states that she “was not present
during the occurrence of the accident [and] thus, cannot explain further […] how it
happened”,8 and it is thus clear that this evidence is hearsay. No justification was
tendered for the admission of this hearsay statement in terms of section 3 the Law of
Evidence Amendment Act, 45 of 1988, and I cannot conceive of any basis upon
which I would be appropriate for me to do so.
[12] In any event, the plaintiff’s statement is not only inconsistent with the plaintiff’s
own pleaded case regarding the circumstances of the accident, as the underlined
quotations above show, it contains nothing whatsoever that could remotely lead me
to the conclusion that the accident was “ due to the negligence of the driver of the
motor vehicle”. To the contrary, it appears to indicate that the vehicle collided with
N[...] on the roadway itself, and there is no indication of the speed at which the driver
was travelling, or the speed at which N[...] was “crossing the road”.
[13] The content of the accident report is similarly inadmissible – and similarly
problematic. It is clear that the content of the document is hearsay: the official who
completed the report was not an eye witness to the accident: the hearsay statement
of the driver is simply repeated as follows: “Driver … says he was driving up with Dr
Mandela Drive towards Avalon. Just saw the child running into the street . Then the
accident happened”. Again, no basis was laid to justify the admission of this
evidence, and I decline to do so.
[14] What is more, even if it were to be admitted, the statement by the driver also
8 Much the same version is advanced in the plaintiff’s section 19 affidavit (which was placed into
evidence at the hearing ), the only difference being that that affidavit specifies the road that Ntando
was crossing as being Mandela Drive.
contains no suggestion of negligence conduct on his part, for example of excessive
speed or a failure to keep a proper lookout. To the contrary, it is suggestive that he
was not in a position to have avoided the accident by taking any evasive action when
N[...] ran into his path of travel . The accident report also states that : (i) neither liquor
nor drug use was suspected on the part of the driver (although it also records that no
testing was done in this regard) ; (ii) the position of the driver’s vehicle before the
accident was “correct road lane”; and (iii) the “manoeuvre” that the driver was
performing was driving “travelling straight” (i.e. not “veering”, as pleaded in the
particulars of claim).
[15] In the circumstances, I am not satisfied that there is any evidence before me
upon which I may reach the conclusion that the accident was, even in part, caused
by any negligence on the part of the driver , let alone in the specific respects pleaded
in the particulars of claim . I am not willing to exercise my discretion to grant default
judgment.
Appropriate relief, costs and order
[16] It will be recalled that Rule 31(2)(a) affords the court a discretion to grant any
order that “ it deems fit”. It appears that such an order could include one for
absolution from the instance, for which the test is “not whether the evidence led by
the plaintiff 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 or ought to) find for the plaintiff”.9
[17] Although I am not satisfied that the plaintiff’s legal representatives have not
9 Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G–H.
adduced any such admissible evidence in this application, I do not consider that it
would be in the interests of justice (i.e. “fitting”) to exercise my discretion to grant
absolution from the instance in this case. I say so because I found certain features of
the hearsay accident report (which I declined to admit into evidence ) to be
confounding, and which might well be clarified should the author of the accident
report (or the driver himself) be subpoenaed to give evidence at a trial , even an
undefended one. In particular, I refer to the following:
a. although it does not contain any compass direction indication , the
“accident sketch” contained in the accident report shows the point of
impact where the vehicle struck N[...] as being on the verge of the
roadway across the oncoming lane to the driver’s lane of travel , which is
consistent with the plaintiff’s pleaded version and inconsistent with the
hearsay statements in the founding affidavit and the accident report
referred to above; and
b. there are indications in the traffic report that there was nothing particularly
unusual regarding the circumstances of the accident that could potentially
have exculpated the driver if indeed that was the point at which the impact
occurred. For example, the report indicates that: (i) the “light condition”
was “daylight”; (ii) the “weather conditions and visibility” were “clear”; (iii)
the “road surface type” was “tarmac”; (iv) the “quality of the road surface”
was “good”; (v) the “road surface” was “dry”; ( vi) the “road marking
visibility” was “good”; (vii) there were no “obstructions”; (viii) the “traffic
control type” was a “barrier line” ; (ix) the road signs were “clearly visible”;
(x) the “condition of the road signs” was “good”; (xi) the “direction of the
road” was “straight”; and (xii) the road was “flat”.
[18] In those circumstances, it seems to me that the order that would be most
appropriate and which I “deem fit” would be to simply dismiss this application for
default judgment.
[19] As to costs, i n the absence of any opposition to the application for default
judgment, there is no justification for any award of costs in favour of the RAF. On the
other hand, it also seems to me that the plaintiff and N[...] should not be left out of
pocket as a result of the manner in which their legal representatives sought to
present the application in the absence of any admissible evidence as to the
circumstances of the accident. I thus consider it appropriate to make an order
forbidding their legal representatives from recovering the costs involved in preparing
and moving this application, either in terms of any contingency fees agreement or
otherwise.
[20] I make the following order
1. The application for default judgment is dismissed;
2. The plaintiff’s representatives shall recover no costs from their client(s)
in relation to the preparation and presentation of the application for
default judgment, whether pursuant to any contingency fees agreement
or otherwise.
RJ MOULTRIE
ACTING JUDGE
Appearance: For the plaintiff: B Tsabedze of Marisana Mashedi Inc. , (012)
321 0510; buhle@mmashediattorneys.co.za