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
LIMPOPO DIVISION, POLOKWANE
APPEAL CASE NO: HCAA27/2024
COURT A QUO CASE NO: 1340/2020
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 1/9/25
SIGNATURE
In the matter between:
MATULUDI LAVY JAN APPELLANT
And
ROAD ACCIDENT FUND RESPONDENT
Heard : 1 August 2025
Delivered: 1 September 2025 by circulation to the parties’ legal representatives
OFFICE OF THE CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
Coram: Naude Odendaal J et Pillay AJ et Stroh AJ
This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date for hand -down is deemed to be on 1
September 2025.
JUDGEMENT
Pillay AJ
Introduction:
[1] The appellant appeals against the whole of the judgment and order of Justice
Muller J, which was granted on 2 October 2023, wherein the respondent was
ordered to be liable for sixty percent of the appellant’s proven damages. The
appellant’s leave to appeal was granted by the Su preme Court of Appeal (“the
SCA”) on the 28 June 2024.
[2] The appellant raised the following grounds of appeal.
[2.1] His Lordship erred in finding the respondent to be liable for only sixty
percent of the plaintiff’s damages.
[2.2] The learned Judge sh ould have found the insured driver to be one
hundred percent negligent and the sole cause of the accident.
[2.3] His Lordship erred in deciding the matter on the basis of apportionment in
respect of merits. There was no factual or legal basis to attribute forty
percent negligence to the plaintiff.
[2.4] The Court failed to accept uncontested oral evidence of the plaintiff as
conclusive.
[2.5] The respondent was not present at court; therefore, plaintiff was entitled to
one hundred percent Default Judgement on merits.
[2.6] The Court failed to have regard to the principles enunciated in the matter
of Jacques Kritzinger v Road Accident Fund (A70/ 2022) 2023 ZAGPPHC
730(21 August 2023).
[2.7] There was no evidence to gainsay the plaintiff’s oral and documentary
evidence.
[2.8] The Court erred in finding that the plaintiff’s evidence was inconsistent and
contradictory.
[2.9] The Court erred in findin g that the plaintiff was not an honest witness and
not impressed with his evidence. There was no factual and legal basis for
this finding.
[2.10] The Court erred in finding that the plaintiff was an unreliable witness. The
plaintiff was clear that he did n ot know the name of the insured driver and
that Dinah Choma was a passenger in his own vehicle, however the Court
insisted that Dinah Choma was the insured driver.
[2.11] The Court erred in finding that in his particulars of claim, the plaintiff failed
to allege that the road was a curve with a yellow lane and a ditch on the
side.
[2.12] The Court erred in finding that the particulars of claim made no reference
to the insured driver overtaking. It is submitted that this is a matter of
evidence.
[2.13] In the particulars of claim the appellant pleaded facts not evidence.
Therefore, the Court was presented with oral evidence of when, how, and
where the accident happened.
[2.14] The plaintiff’s oral evidence was consistent with his section19(f) affidavit.
[2.15] The Court erred in finding that the section19(f) affidavit is only relevant for
lodging the claim with the respondent and same should be disregarded for
purpose of trial.
[2.16] The Court erred in finding that the section19(f) affidavit have no evidential
value at all.
[2.17] The Court erred in concluding that a section19(f) could only be considered
by a Court if there are inconsistencies in the plaintiff’s oral evidence. The
court failed to take judicial notice of the affidavit, because it was consistent
with the plaintiff’s oral evidence. In this regard it is submitted that the Court
misdirected itself.
[2.18] The Court erred in finding that the plaintiff failed to take evasive steps to
avoid the collision. This was despite the plaintiff’s evidence that he tried to
avoid the accident by swerving to the left side of the edge of the road on
the yellow lane and there was a ditch , which could not allow him to move
far left.
[2.19] The learned Judge grossly erred in issuing an order s o brought that i t
contradicted his own judgement.
[2.20] The order was therefore invalid for lack of clarity and ambiguity.
[2.21] By making such a Court order, the Court failed to exercise its discretion
judicially and in the interest of justice.
[2.22] The order granted by the Court ha d immediate and substantial effect and
the harm that flowed from it was serious, immediate, and ongoing.
[2.23] It was submitted that in the interest of justice the order granted by the
Court should be set aside and appealed.
[2.24] It was the appellant’s case that a different Court w ould come to a different
conclusion.
[2.25] In light of the above, the appeal had a reasonable prospect of success.
[3] The appellant sought that the appeal be upheld and that the judgment be set
aside and subs tituted with the following order, “That the respondent is liable for
one hundred percent of the appellant’s proven damages,” and that the
respondent pay the taxed or agreed party and party costs.
Brief Background:
[4] The appellant instituted action to recover damages from the respondent, flowing
from a motor vehicle collision. Notice to defend and a plea was filed, however on
the date of trial, amidst notice of set down having been served on the
respondent, there was n o appearance, on behalf of the respondent . The matter
proceeded by default and only in respect of the merits.
[5] The appellant testified that on the 21 st day of December 2017, between
14H00PM and 15H00PM in the afternoon, he was driving near Glen Cowie Nebo,
in his Corolla Professional, motor vehicle with registration number D[...]. This was
a two-way tarred road and the visibility was clear. There was a curve in the road
and there was an oncoming motor vehicle, which was travelling at a high speed,
and it was overtaking. It was at this stage that the appellant was approaching,
and this vehicle returned to its lane , colliding with the motor vehicle it wa s
overtaking and then changed direction and collided with his motor vehicle.
[6] The appellant testified that he tried to swerve to the yellow l ine but there was a
deep trench, and he tried to brake but it was too late. The vehicle that collided
with his v ehicle was a Toyota van with unknown registration number and the
other vehicle involved was a Condor type of vehicle. He indicated that three
motor vehicles were involved in the collision He sustained an injury to his thigh
and was transported to hospital by ambulance . T he driver that caused the
collision was not injured but driving under the influence of alcohol , as it was
alleged that there was alcohol found in the vehicle. At hospital blood was drawn
from both the drivers and he received treatment. He id entified the driver of the
vehicle as being one Diana Tchoma who was not injured but was transported
with him to hospital.
[7] The appellant testified that at the time of the collision, the yellow line was on the
left-hand side of his vehicle, but he was unable to go far left, as there was a
ditch. He later indicated that Diana Tchoma was a passenger in his vehicle and
that he misunderstood the question, concerning the identity of the driver, who
collided with him.
[8] Counsel for the appellant addressed the Court a quo and indicated that the
insured driver was the sole cause of the accident and that in the absence of any
blame, to be attributed to the appellant, merits should be awarded one hundred
percent, in favour of the plaintiff. The Court a quo referred to the pleadings,
wherein no mention was made, of the curve in the road, or of the overtaking
vehicle and the collision with the other motor vehicle and finally, the collision with
the appellants vehicle, as testified to by the appellant. There was fu rther no
mention in the pleadings, concerning the insured driver overtaking when it was
dangerous to do so. In response the appellant’s counsel drew the Court’s
attention to the Section 19(f) affidavit, of the Road Traffic Act1 as corroboration of
the appellant’s version of the incident . The Court a quo inquired whether the
purpose of the Section 19(f) affidavit, was for confirmation of the evidence of the
appellant, which counsel thereafter conceded, that it was not, and that same
would only have been rel evant, if there was a material difference between the
Section 19(f) affidavit and the appellant’s evidence.
[9] Counsel thereafter indicated that the pleadings, as contained in the particulars of
claim, did not give too much detail , pertaining to the curve and the nature of the
road and that the insured vehicle was overtaking another vehicle. He however
indicated that, the allegations would be found in the evidence and the Court a
quo should take judicial notice, of the affidavit under oath by the appellant,
together with the oral evidence before the Court a quo.
[10] The appellants counsel conceded that the Court a quo had the discretion
concerning whether the insured driver was one h undred percent negligent,
however he motivated that the appellant confirmed his version and in the
absence of inconsistencies flowing from his evidence and the reliability thereof
absence of inconsistencies flowing from his evidence and the reliability thereof
the appellant should succeed one hundred percent in respect of the merits on ly.
The issue of quantum was to be postponed sine die and costs in respect of the
1 Act 56 of 1996 as amended.
merits should be awarded to the appellant. The Court a quo, exercising its
discretion on the merits, granted judgement in favour of the appellant, in that the
respondent was liable for sixty percent of the appellant ’s proven or admitted
damages and the respondent was to pay the costs. As highlighted earlier , it is on
account of this judgement and order that the appellant has approached this Court
on appeal.
Issues for determination:
[11] The crisp issue for determination concerned whether the Court a quo erred in
finding that the appellant was contributory negligent in the manner in which he
drove, on the date in question . Whether this finding was irregular, as the matter
proceeded by way of default , without evidence in rebuttal of the appellant’s
uncontested evidence, concerning the collision being entirely, on account of the
negligence, of the insured driver.
[12] What baring did the section19(f) affidavit have on the proceedings and was same
necessary to be considered by the Court a quo.
[13] Whether the appeal should succeed and the prayers sought be granted with
costs.
The Legal Principles and Analysis:
[14] In P P v J P 2 the Court noted the following concerning interference with the
discretionary power of the Court of first instance,
2 See (A3007/20) [2020] ZAGPJHC 281 (2 November 2020) at paragraph 22 to 26.
“The circumstances under which a court of appeal may interfere with a
lower court’s exercise of a narrow discretion were restated as follows in
Ferris and another v FirstRand Bank Ltd 2014 (3) SA 39 (CC) at para [28]:
‘28 An appeal court may interfere with the exercise of a
discretionary power by a lower court only if that power had not been
properly exercised. This would be so if the court has exercised th e
discretionary power capriciously, was moved by a wrong principle
of law or an incorrect appreciation of the facts, had not brought its
unbiased judgment to bear on the issue, or had not acted for
substantial reasons.’
In instances where a lower court exe rcises a narrow discretion, the
ordinary approach on appeal is that the ‘the appellate court will not
consider whether the decision reached by the court at first instance was
correct, but will only interfere in limited circumstances; for example, if it is
shown that the discretion has not been exercised judicially . . .’ (see
Trencon Construction (Pty) Ltd v Industrial Development Corporation of
South Africa 2015 (5) SA 245 (CC) at para 85).
It would therefore not be competent for this Court to interfere wi th and set
aside the exercise of the trial Court’s discretion merely because this Court
would have preferred the trial Court to have followed a different course
among those available to it. It would equally not be competent for this
Court to alter the percentage of the benefits that should be forfeited by the
respondent merely because this Court believes that its preferred
percentage is the appropriate percentage.
The appellant must therefore satisfy this Court that the trial Court has
exercised its discret ion capriciously or upon a wrong principle, that it has
not brought its unbiased judgment to bear on the question that was before
it or has not acted for substantial reasons.”
[15] It must be borne in mind that an Appeal Court needs to first consider whether this
[15] It must be borne in mind that an Appeal Court needs to first consider whether this
threshold has been met for such interference. It is a n established principle, that
the Court a quo being involved in the hearing of the matter, was best equipped to
determine whether the negligence of the insured driver cause the collision or if
both the appellant and the insured driver were negligent, and whether blame may
be apportioned based on a percentage allocation , in terms of the Apportionment
of Damages Act3.
[16] Rule 18 (4) of the Uniform rules of Court provides, “Every pleading shall
contain a clear and concise statement of the material facts upon which the
pleader relies for his claim, defence or answer to any pleading, as the case may
be, with sufficient particularity to enable the opposite party to reply thereto. ” From
the particulars of claim the appellant alleged that the incident occurred “on the
21st day of December 2017 at approximately 22H30 at Glen Cowie Limpopo
Division”4. This was in stark contrast to the appellant’s evidence where the
incident occurred between “ 14:00 or 15 :00 in the afternoon ”5 this was never
addressed by the appellant’s counsel. The particulars of claim indicated further…
“The plaintiff was a driver of the motor vehicle bearing registration numbers and
letters D[...] when an unknown motor vehicle driven by an unknown driver
(hereinafter referred to as the insured driver) collided with his motor vehicle. The
aforesaid collision was caused by the neglige nt driving of the insured driver, She
having been negligent in one or more or all of the following respects;
He failed to keep a proper lookout; he failed to keep the vehicle he was
driving under properly effective control;
He drove at an excessive speed in the circumstances;
He failed to apply the brakes of his vehicle either timeously adequately or
at all;
3 See Act 34 of 1956
4 See paragraph 4 of the particulars of claim on page 4.
5 See page 3 of the merits trial transcripts.
He failed to take any or adequate steps to avoid the accident when by the
exercise of reasonable care and diligence he could and should have done
so.
[17] This was in stark contrast with the evidence tendered as recorded above . As
noted by the Court a quo these wide, loose ended, and broad statements could
have been applicable to any “plaintiff” concerning a motor vehicle collision. The
appellant argued that the role of the pleadings was there to merely allege facts
which would be supplemented by the eviden ce. This conflicts with the principle
that the pleadings are the basis on which a claim is formed and to which the
opponent must respond. In instances where the pleadings are vague, the
opponent would not be able to properly respond thereto. As correctly h ighlighted
by the Court a quo, that there were no specific averments made concerning how
this collision occurred, with specific reference to the curve in the road and the
overtaking by the insured vehicle, whilst it was dangerous to do so. Nevertheless,
the Court a quo accepted the widely drafted particulars of claim to be sufficient to
cover the evidence of the plaintiff.
[18] The appellant sought the Court to take cognizance of the Section 19(f) affidavit,
for purposes of corroboration of the allegations as testified to by the appellant.
The relevant portion being paragraph 3 which reads as follows;
“On or about the 21 December 2017 at approximately 22H30 at Glen
Cowie, Mawiakae, Limpopo Province, I was a driver of the motor vehicle
bearing registration numbers and letters D[...], when another motor vehicle
overtook on the curve, went back to its lane and hit another motor vehicle,
then lost control and hit my motor vehicle.”
It is perturbing that this information was available to the appella nt from the onset,
before proceedings could be instituted against the respondent , yet these
averments did not feature , in the particulars of claim. This Court aligns itself with
the sentiment of the Court a quo concerning the vague particulars of claim, as no
reason was forthcoming, why the information as contained in the Section 19(f)
affidavit was not relied upon when drafting the particulars of claim.
[19] The appellant relied on the case of Kritzinger v Road Accident Fund 6 wherein
the Court held at paragraph [11], “ that the Court was bound to interfere with the
findings of the Court a quo for several reasons: firstly where it was not satisfied
with the s19(f)(i) affidavit it should have called for the viva voce evidence of the
appellant, and secondly because there was no evidence before it that an
apportionment was appropriate. Thus, I am of the view that the test set out in
Santam and Blom has been satisfied .” Also at paragraph [ 18], “ there being no
other evidence placed be fore Court, the appellant should have succeeded a quo
in toto on the merits ”. Regard was had to the case, the details of which , differ
materially from the one before the Court are quo. It must be noted that unlike
Kritzinger, evidence was placed before the Court a quo, through the testimony of
the appellant. The purpose for which counsel of the appellant , sought to rely on
the Section 19(f) affidavit was to corroborate the appellant’s evidence concerning
the circumstances of the collision, the problem however, was that same was not
reflected in the averments as contained in the particulars of claim , as highlighted
above and on which the appellant instituted proceedings against the respondent.
[20] Regard was had to the trite principle that j udgment may be given in any civil
proceedings on the evidence of any single , competent, and credible witness . In
Daniels v General Accident Ins Co Ltd7 it was said that.
“The single witness, more particularly where he is one of the parties, must
be credible to the extent that his uncorroborated evidence must satisfy the
court that on the probabilities it is the truth.”
6 (A70/2022) [2023] ZAGPPHC 730 (21August2023)
6 (A70/2022) [2023] ZAGPPHC 730 (21August2023)
7 1992 (1) SA 757 (C)
Related to this is the following from S v Sauls and Others8;
“The trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy and
whether, despite the fact that there are shortco mings or defects or
contradictions in the testimony, he is satisfied that the truth has been told”
In Siffman v Kriel9 the Court noted that.
“It does not follow because evidence is uncontradicted, that therefore it is
true. Otherwise, the court, in cases where the defendant is in default,
would be bound to accept evidence the plaintiff might tender. The story
told by the person on whom the onus rests may be so improbable as not
to discharge it.”
[21] In as much as the appellant was at pains to justify the aspect that the Court a
quo erred by indicating that the appellant was not reliable in his evidence it was
clear that there were fundamental issues with the appellant’s version of events in
contrast with the particulars of claim . As highlighted by the Court a quo, the
appellant when testifying before the Court failed to mention that he had a
passenger travelling with him on the date in question at the time of the collision.
The appellant identified the driver of the insured vehicle, being a woman called
Diana Tchoma10, that caused the collision. The appellant thereafter indicated that
Diana Tchoma was rather a passenger in his vehicle (a witness to the collision,
who could have testified, corroborating the appellant’s version, who was not
called) and he testified that he had made a mistake , when he indicated that she
8 1981 (3) SA 172 (A) at 180F
9 1909 TS (1) 538 at 543
10 See page 8 of the transcribed record at line 10 to line 20.
was the driver that caused the collision 11. The averment pertaining to Diana
Tchoma was not contained in the particulars of claim.
[22] As correctly highlighted by the Court a quo, the appellant indicated that the police
and ambulance arrived at the scene, he and the insured driver that caused the
collision, were present and they were transported to the hospital. Both had their
blood drawn, as it was alleged that the driver was driving under the influen ce of
alcohol. It is trite therefore that record of the driver’s details and that of the motor
vehicle was ascertainable, yet the particulars of claim once again referred to an
unknown driver of an unknown motor vehicle . The Court a quo was at pains , to
verify the circumstances surrounding the collision and the steps taken by the
appellant to avoid the collision. The appellant was evasive concerning where he
was prior to, during and after the collision 12. There was no evidence led
concerning the speed at which the appellant was driving prior to the collision and
the distance between the vehicles , at the time that the appellant first saw the
vehicle driven by the insured driver. This Court can find no fault with the findings
of the Court are quo in respect of the evidence which was tended.
[23] The appellant argued that since the trial proceeded on merits by way of default,
there was no evidence, in rebuttal to the appellants version and as such the
respondent should have been found to be one hundred percent liable. This
reasoning is flawed. It does not automatically mean that because the respondent
was absent, the appellant’s version must automatically be accepted, without
determining whether all the elements have been proven concerning the issue of
negligence. As highlighted above in Siffman v Kriel13 the Court noted;
“It does not follow because evidence is uncontradicted, that therefore it is
true. Otherwise, the court, in cases where the defendant is in default,
true. Otherwise, the court, in cases where the defendant is in default,
11 See page 11 of the transcribed record at line 1 to line 11.
12 See page 5 of the transcribed record at line 1 to line 5, page 6 line 19 to line 23, page 7 line 6 to line 8,
page 9 line 15 to page 10 line16.
13 See 1909 TS (1) 538 at 543
would be bound to accept evidence the plaintiff might tender. The story
told by the person on whom the onus rests may be so improbable as not
to discharge it.”
From all the evidence placed before the Court a quo it was clear and apparent
that there were discrepancies in the appellant’s version. Theses discrepancies
could not be overlooked simply on account of the respondent failing to participate
in the proceedings. Thus, the ruling by the Court a quo is unassailable due to the
issues highlighted above.
Costs:
[24] The approach to awarding costs is succinctly set out in Ferreira v Levin NO and
Others, Vryenhoek and Others v Powell NO and Others14 as follows;
“The Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first being that the
award of costs, unless expressly otherwise enacted, is in the discretion of
the presiding judicial officer, and the second that the successful party
should, as a general rule, have his or her costs. Even this second principle
is subject to the first. The second principle is subject to a large number of
exceptions where the successful party is deprived of his or her costs.
Without attempting either comprehensiveness or complete analytical
accuracy, depriving successful parties of their costs can depend on
circumstances such as, for example, the conduct of parties, the conduct of
their legal representatives, whether a party achieves technical success
only, the nature of the litigants and the nature o f the proceedings. I
mention these examples to indicate that the principles which have been
developed in relation to the award of costs are by their nature sufficiently
14 1996 (2) SA 621 (CC) at paragraph 3:
flexible and adaptable to meet new needs which may arise in regard to
constitutional litigation…”
[25] This Court accepts that this appeal was sought by the appellant and was not
opposed by the respondent. In as much as the appellant sought costs if
successful, it does not automatically mean that the respondent be awarded costs
consequent to the appeal failing, as highlighted the respondent did not participate
in the appeal proceedings and there fore, it is just and fitting that this Court order
that there be no order as to costs.
Ruling:
[26] Based on all that has been said above and the reasons given, it is just and
equitable that this appeal be dismissed. The appellant failed to establish that the
discretion exercised by the Court a quo was not exercised “judicially” and there
was no merit for this Court to interfere.
Order:
[27] In the result the following order is made:-
[27.1] The appeal is dismissed.
[27.2] No order as to costs.
_________________________________
KL PILLAY
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
I concur and it is so ordered,
_______________________________
M NAUDE-ODENDAAL
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
I agree,
_________________________________
JD STROH
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE FIRST APPELLANT : Advocate SS Masina
INSTRUCTED BY : Komane Attorneys
FOR THE RESPONDENT : NO APPEARANCE
DATE OF HEARING : 1 August 2025
DATE OF JUDGEMENT : 1 September 2025