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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
GAUTENG DIVISION, P RETORIA
CASE NO: 22476/2022
DATE: 08-05-2025
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) REVISED.
DATE: 18 SEPTEMBER 2025
SIGNATURE
In the matter between
ADV M VAN ROOYEN OBO R A A MATHWAI Plaintiff
and
ROAD ACCIDENT FUND Defendant
EX- TEMPORE J U D G M E N T
DAVIS , J:
[1] In this action the liability of the Road Accident Fund,
hereafter referred to as the RAF, for the damages suffered
by Mr Mathwai Junior, represented by a curatrix ad litem , is
disputed. I shall for sake of clarity refer to Mr Mathwai
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Junior hereafter as the patient.
[2] A previously accepted offer on merits has been
withdrawn and counsel for the plaintiff assured the court
that nothing turns on this withdrawal.
[3] By agreement between the parties the issue of merits
and quantum were separated in terms of Rule 33.
[4] The patient, previously an apprentice auditor in the
employ of the Auditor General, has suffer ed debilitating
injuries and is wheelchair -bound with severe cognitive
impairment.
[5] The occurrence of the motor vehicle accident in
question has been admitted, but the crucial dispute is
whether the patient had been the driver of the single vehicle
involved in the accident or whether his father had been the
driver and the patient merely the passenger.
[6] The resolution of this dispute is not only crucial for the
determination of the RAF’s liability, but also for the patient
who would have no claim in the event that his own
negligence as driver were to be found to have been the
cause of the accident.
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The undisputed facts .
[7] Before turning to the oral evidence it is apposite to
detail those facts which are not in dispute.
[8] It is common cause that the motor vehicle accident
occurred on the afternoon of 3 September 2016. The scene
of the accident was on a straight sandy road. This road
runs between what has been referred to by Mr Mathwai as a
cattle kraal and what had been referred to in papers as a
cattle outpost and the Tlakgameng Village. At the cattle
kraal Mr Mathwai Senior kept cattle. The road links up with
the tarred road which leads to the Tlakgameng Village in
North West P rovince where Mr Mathwai has his residence.
This residence is on a property adjacent to that of Mr
Mathwai’s brother.
[9] The evidence that the vehicle in question, being a Ford
Ranger 3.0 TDi XLT with registration number HFL[ …], had
been purchased by Mr Mathwai on 26 June 2012 for
R145 000 was also not placed in dispute.
[10] It is also not in dispute that the patient was found
outside the vehicle in a semi -conscious state by an
emergency medical response team who arrived on the scene
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after the accident. There was no one else in the vicinity of
the vehicle when the emergency medical response team
arrived at the scene. They found the vehicle laying on its
right -hand side, that is the driver’s side, next to the road.
[11] The patient had been taken from the accident scene
by ambulance to the Ganyesa Hospital and later on the
same day to the Tshepong Hospital near Klerksdorp, also in
the North West P rovince. So far the common cause facts.
The oral evidence
[12] Mr Mathwai testified that on the day in question the
patient had accompanied him from his home to the cattle
kraal. The patient had arrived the day before from
Kimberley by taxi to visit for the weekend.
[13] The road running in front of Mr Mathwai’s residence is
tarred and from that road one turns to the left on the sandy
road to get to the cattle kraal. Photographs of the sandy
road indicated that it was in a good condition with verges on
both sides. The total distance from the residence to the
kraal was indicated as 11 kilometres.
[14] At the kraal the herdboy, Ernest, was met and the
cattle were inspected. The herdboy has since returned to
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Lesotho after his mother had passed away there. He was
not called as a witness.
[15] On the return journey from the kraal, so Mr Mathwai
testified, he was the driver and the patient the passenger.
The speed he was driving at was 60 kilometres per hour.
[16] Plus -minus three kilometres from the kraal a swarm of
bees entered the vehicle through the passenger side
window and Mr Mathwai got stung. This caused him to veer
from side to side and lose control over the vehicle after
which the vehicle exited the road to the right -hand side and
ended up on its right -hand side after having been
overturned.
[17] Mr Mathwai felt his son on top of him and saw “a lot
of blood.” The patient was unresponsive and Mr Mathwai
feared that he had passed away.
[18] Mr Mathwai then clambered from under and over his
son and got out of the vehicle. He could not locate a cell
phone and went to the cattle kraal for help, leaving the
patient inside the vehicle.
[19] Mr Mathwai could not find Ernest at the cattle kraal
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and also not find anyone at the other eight homesteads in
the adjacent area. He then returned to the vehicle after
three hours , only to find the patient missing.
[20] Mr Mathwai then took a shortcut through the
agricultural lands to his residence in Tlakgameng where he
went to his brother’s house. The brother, who had also
since passed away, accompanied Mr Mathwai in the
brother’s old and unroadworthy car to the local clinic.
[21] At the clinic Mr Mathwai made enquiries about an
accident -injured person. He was told no such person had
arrived at the clinic, but the staff had observed an
ambulance passing by.
[22] Armed with this knowledge, Mr Mathwai and his
brother proceeded to the Ganyesa Community Hospital.
There they were told that a critically injured person had
come there by ambulance but had since been transferred to
Tshepong Hospital some 300 kilometres away , on Mr
Mathwai’s estimation. In reality it is less.
[23] Mr Mathwai and his brother then went to the South
African Police Service station in Tlakgameng to report the
accident. Mr Mathwai , who is a local teacher and well -
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known in the district , knew the police officer he
encountered, namely Warrant Officer Molefe.
[24] Not only had Warrant Officer Molefe recorded the
accident details in “a little book,” but he also completed the
accident report in Mr Mathwai’s presence. The details of
the accident and its cause were completed on the basis of
Mr Mathwai’s version. Warrant Officer Molefe has also
since passed away during the Covid pandemic.
[25] Mr Mathwai and his brother then returned home. The
next day, being Sunday, they went to tow Mr Mathwai’s
vehicle back home. In cross -examination and re-
examination Mr Mathwai also testified that warrant officer
Molefe came to his residence on that Sunday “to finish what
he had started the previous day.”
[26] On Tuesday, 6 September 2016, Mr Mathwai travelled
to Tshepong to see his son. The next week Mr Mathwai
returned to the school to resume his work as a teacher.
[27] Save for “a little bit of pain” on his hip, Mr Mathwai
was uninjured in the accident, but after a year or two he
had some pain in his neck and consulted an undisclosed
doctor.
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[28] So far the evidence for the plaintiff in respect of
merits. I shall deal with the cross -examination of Mr
Mathwai when the evidence is evaluated hereinlater.
[29] The first witness for the RAF was the emergency
medical response practitioner who had found the patient on
the accident scene, Mr Mongwaketsi.
[30] He testified that after having received a notification
from a callout centre in Vryburg, he proceeded to the
accident scene.
[31] On the scene, after he and his partner had followed
protocol and ascertained that it was safe for them to
disembark, found a vehicle laying on its right -hand side.
Outside the vehicle they found the patient. He was
conscious but incoherent. Mr Mongwaketsi’s report
contained the followed inscriptions made by him:
“Patient was involved in MVA , sustained ?
spinal injur y? femur #.” a nd:
“Patient assisted and thereafter transferred
to Ganyesa Hospital for further
management .”
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[32] The emergency medical response team also searched
the vehicle’s environs as sometimes occupants of vehicles
are flung out when vehicles overturn, but could find no one
else. Therefore, so Mr Mongwaketsi testified, he wrote
“MVA (driver)” as part of his provisional obseervation.
Notably his report detailed no lacerations, bleeding or blood
loss as part of the 45 observations noted on his incident
report.
[33] The second witness called by the RAF was the vice
principal of the school at which Mr Mathwai had been
teaching at the time. Her evidence was to the effect that
their principal had informed her that the reason for
Mr Mathwai’s absence from school for a week was that
Mr Mathwai had told the principal that Mr Mathwai’s son had
been involved in a serious motor vehicle accident over the
previous weekend.
[34] That concluded the case on the merits for the RAF.
Evaluation
[35] Counsel for the plaintiff argued that as
Mr Mathwai was the only witness who present ed direct
evidence of the motor vehicle accident, his version should
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be accepted. He further argued that his version was
corroborated by objective evidence.
[36] But the matter is not as simple as that. The only
objective possible corroborating evidence was the
occurrence of the motor vehicle accident and the fact that
the patient had been an occupant of the vehicle which had
landed up on its right -hand side. These latter two facts are
however neutral and could also have been established after
the fact by someone who had arrived on the scene after the
motor vehicle accident , like the emergency medical
response team had done.
[37] The fact that Mr Mathwai’s version had not been
contradicted by other direct evidence, such as by
eyewitnesses, does not of necessity means that it should be
accepted.
[38] In Nelson v Marich 1952 (3) SA 140 (A) to 149, at
149A -D the court said:
“The fact that there was no evidence to
contradict the evidence given by the
defendant does not mean that the court is
bound to accept the defendant’s evidence.
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The question is whether it can be said that
the defendant proved his defence. His
story, as was pointed out by the
magistrate, was an improbable story. The
defendant’s evidence read as a whole does
not bear the imprint of truth and in these
circumstances, it cannot be held that he
succeeded in discharging the onus resting
upon him .”
[39] In Kent z (Pty) Ltd v Power 2002 [1] All SA 605 (W) at
paragraphs 15 to 20 the full court reviewed these and other
decisions as follows:
“15. There are other cases directly o n
point which deal with the principle that
uncontradicted evidence is not necessarily
sufficient to discharge an onus and it is to
those cases which regard must be had in
determining whether the trial court can be
said to have been incorrect in deciding
whether the plaintiff had discharged the
onus of proving his case on those issues
on which he bore the onus.
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16. Perhaps the most succinct statement
of the position is to be found in Siffm an v
Kriel 1909 TS 538 where Innes, CJ said at
543:
‘It does not follow, because the
evidence is uncontradicted, that
therefore it is true. The story told by
the person upon whom the onus rest s
might be so improbable as to not
discharge it.’ That statement of the law
has been followed frequently since.
Some examples will suffice.
17. In Nelson v Marich 1952 (3) SA 140
(A) Centliv res JA said the following:
‘The fact that there was no evidence to
contradict the evidence given by the
defendant does not mean that the court
is bound to accept the defendant’s
evidence.’”
[40] In McDonald v Young 2012 (3) SA 1 (SCA) the
position was put beyond doubt by the Supreme Court of
Appeal as follows:
“It is settled that uncontradicted evidence
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is not necessarily acceptable or sufficient
to discharge an onus. In Kentz (Pty) Ltd v
Power , Cloete J undertook a careful review
of relevant cases where this principle was
endorsed and applied.” Reference was
then again made to Siffman v Kriel (supra) .
[41] To quote De Villiers, JP in Union Market Agency Ltd
vs Glick and Co 1927 OPD 285 at 288, the evidence of Mr
Mathwai must be “sufficiently substantial, detailed, reliable
and satisfactory ” for it to be accepted.
[42] I will start with Mr Mathwai’s demeanour. He avoided
all eye contact when furnishing answers. Even when taking
into account cultural practices relating to deference and
humility, he refused to do so despite having been urged by
counsel to answer directly to the court. His body language
was also to turn away from the court even when questions
were asked from the bench. In addition to this, he became
agitated when Adv Mutato who appeared for the RAF, dared
to question his version of the events.
[43] In order not to be unfair to Mr Mathwai, I shall not
make credibility findings based on my observance of his
manner of testifying alone, save to say that it left the court
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with a feeling of unease.
[44] It is necessary to refer to both internal and external
contradictions in his evidence and to weigh those up
against general probabilities.
[45] I will start with Mr Mathwai’s most recent statement
being one deposed to on 23 April 2025 in support of an
application in terms of Rule 38(2). Therein he stated that
he had lodged a claim on behalf of his son directly with the
RAF. When confronted in cross -examination by the fact that
it was actually his daughter who had lodged a claim, he
firstly tried to explain that due to the fact that his daughter
was the one taking care of the patient, he “put her in my
place.” When pushed further, he could offer no explanation
for the incorrect statement contained in his affidavit.
[46] In the above statement he also stated that the cattle
kraal, described therein as a cattle post, was 20 kilometres
from his home. Later he said 15 while in court he testified
that it was 11 kilometres.
[47] In respect of the other homesteads that he had gone
to seek help after the accident, in his affidavit he explained
it as follows: “ The cattle post consist of a piece of land on
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which you are awarded roaming rights by the tribal leader
and at the time there was, there were about eight
individuals that had such rights ”. Whether this included
himself and whether some of the others had grazing rights
but, like him, lived in the village, was not explained.
[48] In court when testifying about why his vehicle had left
the sandy road, he said he had been driving at 60
kilometres per hour while in his affidavit he said that it was
“a gravel road which cannot be driven on fast.”
[49] In his affidavit he maintained that he had found out
that the police had come across the accident scene in his
absence. In his evidence- in -chief this piece of evidence
was absent.
[50] Despite providing a series of photographs and
attaching them to his affidavit, there is no explanation
either in the affidavit or in his evidence -in -chief how a
forward moving vehicle alleged to have overturned, would
end up on the right -hand side of the road on its right side.
The laws of physics and logic indicate that this is an
improbability. This remains unexplained however , despite
the corroborating evidence of how the vehicle had been
found.
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[51] Regarding the information furnished to the South
African Police, contrary to what Mr Mathwai had testified in
court, Mr Mathwai had stated the following in his affidavit:
“I confirm that the following day the South
African Police Services came to my place
of residence to obtain information relating
to the accident. The South African Police
Services obviously knew where I stayed as
my family and I are well -known in the area
due to teaching at the local school. Most
of the people that reside in the area have
been taught by me. I confirm that I
furnished the relevant details to the police
which culminated in them completing the
OAR. The OAR was completed on the day
mentioned therein. This was completed by
the police officer whose name I recognised
as the officer that attended at my house on
Sunday, being Officer Molefe. The
information therein is true and correct and
premised on the fact that this is the
information I gave him on that Sunday .”
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[52] Apart from the obvious differences between his
statement and his evidence in court as to his interaction
with Warrant Officer Molefe and about when he gave the
accident -related information at the police office on
Saturday, 3 September 2016, the OAR reflects that it was
completed by Warrant Officer Molefe on
25 September 2016. That is three weeks later. Mr Mathwai
could not explain any of these discrepancies during cross -
examination.
[53] Irrespective of these discrepancies as to dates and
the like, the discrepancies relat ing to the accident are even
more relevant. Mr Mathwai had testified that the version of
how the accident had occurred as contained in the accident
report was the one he gave to Warrant Officer Molefe.
Therein it was recorded that:
“The swarm of bees flied inside the LDV
through the open passenger door window
and as a result the passenger ducked to
the driver and the driver lost control of the
steering wheel and the LDV swayed off the
road and overturned.”
[54] On the one hand, nothing was said in court about
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the ducking manoeuvre of the patient having caused
Mr Mathwai to lose control, and on the other hand, nothing
had been said to Warrant Officer Molefe about a bee having
stung Mr Mathwai as being the cause of the loss of control
as he had testified in court.
[55] Getting closer to the actual accident and its
aftermath, Mr Mongwaketsi had testified that all the
windows in the vehicle including in particular the
windscreen had been shattered in the accident. Mr Mathwai
however, rather than exit through the front window,
explained a more laborious process of climbing over the
patient to exit via the passenger side window.
[56] I find it strange that a father could abandon his son
for three hours while attempting to find help only three
kilometres away. But this might be explained by
Mr Mathwai having thought his son to be dead. Clearly the
son was not and in Mr Mathwai’s absence had been able to
get out of the vehicle unaided.
[57] What is astounding to me however, is that when a
father found out that his eldest son, which he had feared
dead, was in fact not dead and was being attended to in a
hospital, he did not rush to celebrate this and see this
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miracle for himself, but waited three days before doing so.
In the meantime, he recovered his vehicle. Upon
questioning, Mr Mathwai disclosed that he had taken a taxi
to Tshepong as his brother’s vehicle was not roadworthy,
but no explanation for this extraordinary time delay was
furnished nor was it even hinted that the taxifare might have
been a problem.
[58] There are other discrepancies surrounding the
aftermath apparent from the documentary evidence
canvassed with Mr Mathwai. In the accident register, not
the accident report, where Warrant Officer Molefe had to
record the particulars of the driver and all persons injured
in the accident by a way of three items, he recorded
Mr Mathwai’s particulars as that of the driver, recorded that
he was not injured, but strangely recorded that the EMR had
transported the driver to Ganyesa.
[59] The other inexplicable feature was when Warrant
Officer Molefe had recorded the particulars of the name of
the hospital in relation to the patient, he only recorded
Ganyesa and not Tshepong as one would have expected as
by the time that Mr Mathwai gave the particulars to the
police, he was aware of where his son was.
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[60] The documents discovered were agreed at a
pretrial conference to be what they purport to be. There is
a series of annotations included in the patient’s patient file
at the Ganyesa Hospital which bears mention. They read as
follows:
“Patient family want the patient to be taken
to private. Called Vryburg private hospital.
Do not take intubated patient. Wilmed Park
and Anncron Clinic wanted Dr Botha, the
neurosurgeon, to be called first. Dr Botha
not answering phone. Tried activating
chopper air ambulance, tried activating
chopper, air ambulance delayed over 50
minutes. Patient ended up leaving hospital
with ambulance (road) at 21:30.”
[61] The above notes, particularly when one has regard
to the detail thereof, are too extensive to be disregarded as
false. The only explanation for a nurse having made these
extensive notes is because they recorded factual
happenings in the same detailed fashion as the examination
and treatment of the patient had been noted in the same
hospital files, which had been extremely detailed and
extensive.
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[62] This means that Mr Mathwai’s version of what had
happened at the Ganyesa Hospital was false. It would
however answer the question as to why he waited three
days before going to witness the miracle of his arisen son.
He did not go to Tshepong earlier, because he had already
witnessed the blessed event at Ganyesa and was satisfied
that his son was properly taken care of , albeit not in a
private hospital as requested.
[63] The various notes contained in the hospital record
also indicate an absence of a laceration to the head or a
bleeding headwound or, in fact, any other bleeding wound.
This is despite the patient’s skull having been palpated to
determine the presence of any subcutaneous swelling. Mr
Mathwai’s version of there having been a lot of blood where
neither he nor the patient had been bleeding, must then
also be false.
[64] This begs the question why all these discrepancies
and falsity. The probable inference is that it was done to
cover up the fact that the patient had been the driver and
the sole occupant of the vehicle.
[65] The objective facts on which the plaintiff’s counsel
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sought to rely, namely the existence of a collision, the
overturned vehicle and the discovery of the patient by the
EMR team, equality fit in with the scenario of the patient
having been the driver and sole occupant, who had
overturned the vehicle.
[66] I have, in conducting the above analysis, ignored
the double hearsay evidence of the deputy principal.
[67] I am mindful of the dire consequences of an
adverse finding on liability for the plaintiff, but in my view
the evidence of Mr Mathwai is not “sufficiently substantial,
detailed, reliable and satisfactory” to tilt the balance of
probabilities in favour of the plaintiff.
[68] Even if the probabilities are evenly balanced, the
plaintiff bore the onus. In such circumstances absolution
from the instance should be the proper order. See Koster
Koöperatiewe Landboumaatskappy v SA Spoorweë en
Hawens 1974 (4) SA 420 (W) applying the principles
enunciated in National Employers Mutual General Insurance
Association v Gany 1931 AD 197 at 199.
[69] As to costs, the general rule is that costs should
follow the event . T his is however, an exceptional case
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where the RAF had initially accepted liability only to retract
that concession at a late stage. This must have caused
further costs and delays. In the exercise of the court’s
discretion I find it fair that each party pay its own costs.
[70] The order is therefore as follows:
1. On the issue of liability , absolution from the
instance is ordered.
2. Each party is ordered to pay its own costs.
N DAVIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
DATE OF JUDGMENT DELIVERED : 8 MAY 2025
APPEARANCES:
For the Plaintiff: Adv P A Venter
Attorney for the Plaintiff: VZLR Inc., Pretoria
For the Defendant: Ms C Mothatha
Attorney for the Defendant: The State Attorney, Pretoria