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
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Reportable
CASE NO: 1779/2024
In the matter between:
NTSIKELELO SIGCAU Plaintiff
and
ROAD ACCIDENT FUND Defendant
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] The plaintiff sued the Road Accident Fund (the Fund) for damages under
several heads in the total sum of R37 061 278.00 (thirty-seven million and sixty -
one thousand, two hundred and seventy-eight rands) for the injuries he sustained as
a result of a motor vehicle accident that occurred on 29 June 2022 between his
motor vehicle and an uni dentified insured motor vehicle. The accident occurred
near Igoda, East London, on a public road known as R72. He alleges that he was
the driver of his motor vehicle at the time of the accident, and the accident was
caused by the negligent driving of the u nknown insured motor vehicle by the
unknown insured driver.
[2] These are the material facts that the plaintiff pleaded in his particulars of
claim as the basis for the Fund’s liability for the damages he claims. On or about
Wednesday, 29 June 2022, he was involved in a motor vehicle accident on the R72
Road at or near Igoda, East London. When the motor vehicle accident occurred, he
was driving a white Isuzu bakkie, with registration letters and numbers J[...],
travelling from Port Alfred towards East London. An unknown insured motor
vehicle that was travelling on the opposite lane of the road suddenly encroached on
his lane of travel as it was avoiding a collision with stray animals that were on the
road.
[3] In order to avoid a head -on collision with the unknown insured motor
vehicle, he swerved his motor vehicle to the left side of the road. He lost control of
his motor vehicle, and it overturned. As a result of the accident, he sustained
serious bodily injuries. The unknown insured driver was neglig ent on several
grounds, including the fact that he failed to exercise due care and keep a proper
lookout when it was appropriate to do so; and/or failed to give adequate precaution
of his approach when by exercise of reasonable skill and care he could and should
have done so; and/or failed to steer his motor vehicle in a manner that did not
endanger the lives of other drivers including the plaintiff.1
[4] In the course of time the Fund defended the plaintiff’s claim. In defence of
the claim on the issue of liability, it pleaded that it bore no knowledge of the
allegations made by the plaintiff and put him to the proof thereof. It further alleged
that the accident occurred as a result of the plaintiff’s sole negligence on several
grounds including th e fact that he failed to keep his vehicle under proper control;
failed to keep a proper lookout; and failed to avoid the accident when by exercise
of reasonable skill and care he could and should have done so.2
[5] For reasons that will become clearer in the course of this judgment, it is
necessary that I set out, at this early stage, a curtailed history of litigation in this
matter. The plaintiff lodged his claim with the Fund on 28 May 2024, a month shy
of two years from the time of the accident. On 30 S eptember 2024 he issued the
summons commencing this action, which were served on the Fund on 03 October
2024.
[6] After the defendant filed its plea and when the action reached litis
contestatio (close of pleadings), each party made discovery on oath, of d ocuments
relating to the plaintiff’s accident as envisaged in Rule 35 of the Uniform Rules of
Court. From the pre -trial minute that the parties signed on 13 March 2025, it is
apparent that as at that time, the Fund was disputing liability for the damages
suffered by the plaintiff. This position prevailed on 14 July 2025 as gleaned from
the parties’ roll call preparation checklist. An intimation that appears from the
parties’ minutes of the pre-trial conference dated 14 July 2025 is that the Fund was
1 These grounds are set out in paraphs 6.1 to 6.7 of the plaintiff’s amended particulars of claim.
2 These facts are set out in paragraphs 3 and 4 of the defendant’s plea dated 22 November 2024.
still assessing the question of its liability. Hence, the parties agreed that the matter
was incapable of settlement at that stage.
[7] The matter served before me for trial on 04 August 2025. Ms Da Silva who,
together with Ms Booysen, appeared for the plaintif f, applied for the separation of
the merits of the claim from the quantum of damages. Mr Gona who appeared for
the Fund supported the application and I granted it as envisaged in Uniform Rule
33(4). By agreement between the parties, the plaintiff’s partic ulars of claim were
amended during the plaintiff’s evidence in chief, by the deletion of numbers ‘368’
from the details of his motor vehicle and the insertion in their place, of numbers
‘386’.
The issues to be determined
[8] The central issue in the pres ent case was whether a motor vehicle accident
happened, and whether the plaintiff sustained in that motor vehicle accident serious
bodily injuries which resulted from the negligent driving of another motor vehicle
by the unknown insured driver. Common cause was made by the parties of the fact
that R72 is a public Road.
[9] It is necessary to state that even though the Fund duly participated in the pre-
trial procedures which, in terms of the Uniform Rules of Court are intended to
facilitate the trial readin ess of the matter, and despite the fact that the matter was
properly set down for trial, Mr Gona submitted at the start of the trial that he would
not be able to participate in the proceedings. He advanced two reasons for this
stance, the first was that since the Fund’s plea on the issue of liability was that of a
bear denial, and in as much as it was still not in a position to accept liability for the
plaintiff’s claim, it had no version to advance, and it had not secured any evidence
in rebuttal of the pl aintiff’s claim should it be called upon to do so. The second
reason, and perhaps a more disconcerting one at that hour of the proceedings, was
that those who administer the Fund at the local level, held the view that the
plaintiff’s claim ‘was fraudulent’. Unenviable as Mr Gona’s position was, this is a
matter I intend reverting to when it is opportune to do so in this judgment.
The plaintiff’ s case
[10] The plaintiff was the only witness in support of his claim. He also relied on
the documents that he di scovered, which included the accident report number
AR245/06/2022 which was compiled on the day of the accident by Sgt Nkukwana
of the Fleet Street police station; a sworn statement that the plaintiff deposed to
before Sgt Vacu of the same police station o n 19 August 2023; and the medical
records from the Life Beacon Bay Hospital, where he was admitted for medical
attention immediately after the accident. It suffices, for the present, to state that
according to the medical records, the plaintiff suffered a spinal injury which
rendered him paralyzed.
[11] In the accident report which Sgt Nkukwana compiled around 22:00 on the
night of the accident, the description of the accident is set out as follows:
“It is alleged that a motor vehicle with registration number J[...] was travelling at R72 Road from
the direction of Port Alfred and he lost control of his vehicle when he was avoiding to be collided
with a herd of cattles (sic) and his vehicle rolled dawn (sic) to the bushes.”
[12] The accident report, whic h is among the contents of the police docket with
CAS number 147/07/2023, bears the formal stamp of the SAPS and appears to
have been checked and counter signed by a second police officer, Mbuba GL with
this officer’s force number, and it was further assig ned occurrence book number
2203/06/2022. However, the sketch of the accident scene provided in the accident
report only entails what purports to be a two -way road with a broken middle line
which delineates the two lanes. On the right side of the sketch, th ere are ragged
lines. There is no explanatory key to the sketch which would provide an
interpretation of these drawings. Notably, there is no mention of a second vehicle
in the portion of the report that is designed for the details of another vehicle.
Hence, as is apparent from the particulars of claim, the claim is that envisaged in
section 17(1) (b) of the Act, which makes provision for instances where the
offending motor vehicle is unidentified.
[13] The plaintiff’s version of the accident was that he was travelling along the
R72 Road from Port Alfred to East London in his Isuzu double cab bakkie bearing
registration letters and numbers J[...]. The time was approximately 22h00 and it
was dark. There were no adverse weather conditions. He was driving on his correct
side of the road at 100 or 120 km/h with his seat belt fastened. As he was about to
approach a curve near Igoda, he reduced the speed of his vehicle to less than
100km per hour in order to safely negotiate the curve. A motor vehicle suddenly
approached with its headlights on bright and it encroached on his path of travel.
[14] In order to avoid colliding with the said vehicle, and while blinded by the
glare of its bright headlights, he decided to veer to his left towards the yellow lane.
Owing to being blinded by the glare of the bright lights of the encroaching vehicle,
and as he moved to the left side of the road to avoid the collision, he
‘miscalculated’ his move, lost control of his vehicle which hit the wall of the road
and rolled over to the bushes nearby. He explained that he considered veering to
the left safer as it dawned on him that if the unknown insured driver was
overtaking another vehicle, or he/she was avoiding some other object, veering to
the right side of the road would lead t o a collision between his vehicle and that
the right side of the road would lead t o a collision between his vehicle and that
other vehicle or object, as the case may have been.
[15] While he was trapped inside the vehicle as it landed on the bushy area, he
alerted passersby to the accident by sounding its hooter and flashing its lights. He
had begun losing energy when members of the neighbouring community ultimately
arrived and attempted to assist him out of the vehicle. As the members of the
community assembled around him, he could hear them mention stray cattle on the
road as the poss ible cause of the accident. Around that same time an ambulance
arrived, and the paramedics pulled him out of the vehicle, stabilized and carried
him to the ambulance. As he was being carried to the ambulance, he could see that
the police had also arrived a nd were controlling traffic. He did not speak to any
police officer at that stage.
[16] From the scene of the accident, he was conveyed to the Life Beacon Bay
Hospital where he was admitted for approximately three weeks. His examination
by the doctors at the Hospital revealed that he sustained an injury to his spine and
was further told by the examining doctor that he was paralyzed. He underwent
surgery and after several weeks in hospital, he was transferred to a rehabilitation
facility where he was admitt ed until December 2022. At the time of his testimony,
the plaintiff was in a wheelchair.
[17] The Life Beacon Bay Hospital records that I was referred to indicate that the
plaintiff was admitted in that hospital’s emergency unit on 29 June 2022 at 23:49
having been brought by Red Alert Ambulance with the history of having been
involved in a motor vehicle accident. An entry in the record regarding his diagnosis
was that he sustained a laceration on the forehead and a fracture of the spine which
rendered him completely paraplegic.
[18] According to the plaintiff, he later heard from his siblings who had also
come to the hospital upon his admission, that Sgt Nkukwana came to interview
him regarding the accident. He explained that this must have been at a tim e when
he was attended to by the medical staff at the hospital. Hence, Sgt Nkukwana left a
message with his siblings together with his contact details. Sometime in 2023, he
received a phone call from a police officer who identified himself as Sgt Vacu who
was the investigating officer in a case of reckless driving. Sgt Vacu requested to
meet him in order to obtain his sworn statement. He agreed, and also providing Sgt
Vacu with his residential address.
[19] When weeks passed by without hearing from Sgt Vacu , he contacted Sgt
Nkukwana who requested to meet him and the meeting took place at his home. In
the meeting, Sgt Nkukwana informed him that since he had not spoken with him
regarding the accident he would require him to provide a sworn statement in order
for him to finalize the accident report which had since been closed and archived.
He subsequently made a sworn statement before Sgt Vacu on 19 August 2023. The
plaintiff’s sworn statement was filed in the docket with CAS 147/07/2023. In this
statement, he narrated how the accident occurred in substantially the same manner
that he narrated it in his evidence in chief which I have summarized above.
[20] Among the averments that are contained in the plaintiff’s sworn statement
was that he lost control of his vehicle when he tried to avoid colliding with the
unknown vehicle when the latter vehicle was avoiding stray animals that were on
the road. Asked to clarify this fact, the plaintiff explained that he informed Sgt
Vacu that the presence of stray animals on the road was information he obtained
from the community members who had gathered at the scene. He was also asked
about the fact that the details of his motor vehicle as recorded in the accident report
are at variance with the details he gave in his testimo ny. He explained that it must
have been an error that Sgt Nkukwana made, of transposing the registration
numbers of his vehicle. In the statement that he made to Sgt Vacu he corrected the
details of his motor vehicle.
[21] The plaintiff’s version regardin g how the accident took place was not
challenged, Mr Gona having indicated that he had no version to put to the plaintiff
and no evidence in rebuttal of his version. The plaintiff closed his case. I interpose
to state that it was indicated by Ms Da Silva and Mr Gona that Sgt Nkukwana has
since passed away. At the end of the plaintiff’s case, the Fund also closed its case
without leading any evidence.
The parties’ submissions
[22] Ms Da Silva submitted that the plaintiff discharged the onus that rested on
him of provi ng, on a balance of probabilities, that an accident occurred which
resulted from the negligent driving of the unknown insured driver and that he
sustained bodily injuries as a result of that accident.
[23] On the issue of the alleged negligence on the par t of the plaintiff, Ms Da
Silva submitted that the emergency situation which he found himself in was not of
his own making but as a result of the actions of the unknown insured driver who
encroached on his path of travel. In making this submission, she rel ied on the
dictum of Pakade AJ (as he then was) in Ngxamani v RAF3 where it was held that a
person who finds himself in danger cannot be guilty of negligence merely because
on that emergency, he had not acted in the best way to avoid danger, if and when
the sudden emergency in which he finds himself is not of his own doing.
[24] Ms Da Silva further submitted that the plaintiff’s version demonstrates that
there was fault on the part of the unknown insured driver, and that since his
evidence stands uncontroverted, this Court must find that the negligence of the
unknown insured driver was the sole cause of the accident.
3 2002 (2) All SA 405 (TK), at para 24; see also, Ntala and others v Mutual and Federal Insurance Co Ltd 1996 (2)
SA 184 (T).
[25] Dealing with the fact that none of the parties called Sgt Vacu to give
evidence in these proceedings, Ms Da Silva submitted that Sgt Vacu, albeit
available, would not elucidate any of the facts testifi ed to by the plaintiff as he did
not witness the accident and did not attend to its scene. Mr Gona made no
submissions to counter those made on behalf of the plaintiff. This is in keeping
with the indication he gave that he was in no position to participat e in the trial of
the matter.
The legal principles
[26] In order to succeed in her claim, the plaintiff had to establish on a balance of
probabilities that her injury arose out of the negligent driving of a motor vehicle
and that there is some connection between the driving of that motor vehicle and his
injury.4 This Court must be satisfied, on a preponderance of probabilities, that his
version is true and accurate and therefore acceptable. It is trite that the estimate of
the credibility of a witness wi ll be inextricably bound up with a consideration of
the probabilities of the case. 5 Such probabilities must be such that, on a
preponderance, it is probable that the particular state of affairs existed.6
[27] In Stacey v Kent,7 Kroon J wrote:
‘The inqu iry after the case remains whether the plaintiff has, on a balance of probabilities,
discharged the onus of establishing that the collision was caused by negligence attributable to the
defendant. . .’
4 Grove v The Road Accident Fund (74/10) [2011] ZASCA 55 (31 March 2011), at para 7; Van Wyk v Lewis 1924 AD
438 at 444; Kemp v San tam Insurance Co Ltd 1975(2) SA 329 (C) at 330F. See also, Wells and Another v Shield
Insurance Company Ltd and Others 1965 (2) SA 865 (C), at 867H-868A.
5 National Employers’ General Insurance Co Ltd v Jagers [1984] 4 All SA 622 (E), at 624 -5; Santam Bpk v
Biddulph (105/2003) ZASCA (16 February 2004).
6 Schwikkard PJ (et al), Principles of Evidence, 4th Ed, 2016, page 627, at 32.7.
7 1995 (3) SA 344 (ECD) at 352I-J.
[28] Since the motor vehicle accident on the basis of w hich the plaintiff lodged
his claim with the Fund allegedly involved an unidentified motor vehicle, section
17(1)(b) of the Road Accident Fund Act (the Act) is of relevance. This section
provides:
‘17(1) The fund or an agent shall –
(a) . . .
(b) subject to any regulation made under section 26, in the case of a claim for
compensation under this section arising from the driving of a motor vehicle where
the identity of neither the owner nor the driver thereof has been established, be
obliged to compensate any person (the third party) for any loss or damage which
the third party has suffered as a result of any bodily injury to himself or herself or
the death of or any bodily injury to any other person, caused by or arising from
the driving of a motor vehicle by any person at any place within the Republic, if
the injury or death is due to the negligence or other wrongful act of the driver or
of the owner of the motor vehicle or of his or her employee in the performance of
the employee's duties as employee . . .’
[29] The relevant regulation promulgated in terms of section 26 of the Act, which
governs the Fund’s liability is regulation 2, and it provides as follows:8
‘Further provision for liability of Fund in terms of section 17(1)(b)
2(1) In the case of any claim for compensation referred to in section 17(1) (b) of the
Act, the Fund shall not be liable to compensate any third party unless -
(a) the bodily injury or death concerned arose from the negligent or other wrongful
driving of the motor vehicle concerned;
(b) the third party took all reasonable steps to establish the identity of the owner or
the driver of the motor vehicle concerned;
8 As published in the Government Gazette, by notice GG 31249 of 21 July 2008.
(c) the third party submitted, if reasonably possible, within 14 days after being in a
position to do so a n affidavit to the police in which particulars of the occurrence
concerned were fully set out; and
(d) the motor vehicle concerned (including anything on, in or attached to it) came into
physical contact with the injured or deceased person concerned or wi th any other
person, vehicle or object which caused or contributed to the bodily injury or death
concerned.
(2) The liability of the Fund in the case of any claim for compensation referred to in
section 17(1)(b) of the Act shall not exceed the amount for which the Fund would
have been liable had it been a claim for compensation referred to in section
17(1)(a) of the Act.
(3) A claim for compensation referred to in section 17(1)(b) of the Act shall be sent or
delivered to the Fund, in accordance with the pr ovisions of section 24 of the Act,
within two years from the date upon which the claim arose, irrespective of any
legal disability to which the third party concerned may be subject and
notwithstanding anything to the contrary in any law.’
[30] In the discu ssion that follows, I consider, in the light of these legal
principles, whether the plaintiff has established his claim against the defendant on
a balance of probabilities.
Discussion
[31] The starting point is that the plaintiff was a single witness in his case.
Section 16 of the Civil Proceedings Evidence Act 25 of 1965 provides that
judgment may be given in any civil proceedings on the evidence of any single
competent and credible witness . In other words, only credible evidence shall be
sufficient to enable a Court to give a judgment. The court must be satisfied that the
single witness has told the truth.
[32] There is of course no rule of thumb or formula to apply in determining the
credibility of a single witness. The trial court will weigh the evidence of the single
witness and consider its merits and demerits, and having done so, decide whether it
is trustworthy and whether it is satisfied that the truth has been told despite the
shortcomings or defects or contradictions in the witness’s evidence.9
[33] Even though the Fund has not adduced any evidence to counter the
plaintiff’s case, I must still have regard to the pleadings as they stand in so far as
the defence it posited is conc erned, and the plaintiff’s version, as part of the
determination to be made, whether the plaintiff has discharged the onus that rests
on him, of proving his claim against the Fund.
[34] From the plaintiff’s version as pleaded and as he testified, the sum total of
the material facts that have been asserted pertaining to the cause of the accident are
that the unknown insured driver encroached in the plaintiff’s correct path of travel
with the headlights of the unknown insured vehicle on bright, thus blinding the
plaintiff with the glare of the bright lights.
[35] As regards the occurrence of the accident, the Fund indeed pleaded a bare
denial. Concerning the issue of negligence, it pleaded that the accident occurred as
a result of the sole negligence of the plaintiff on the grounds which include those
enumerated elsewhere in this judgment. As it often is the case, the Fund did not
participate in the trial of this matter even though it had filed its plea and the matter
was properly set down for trial.
9 S v Sauls 1981 (3) SA 172 (A) at 180E–G. Even though this principle was laid down in a criminal case, it holds
true for the assessment of the evidence of a single witness in a civil trial.
[36] In determining, as against the probabilities, whether the plaintiff’s version is
true and accurate, and therefore acceptable, this Court must apply the approach as
laid down in Stellenbosch Farmers’ Winery Group Ltd. and Another v Martell &
Cie SA and Others,10 where the Court held:
‘[t]he court’s finding on the credibility of a particular witness will depend on its impression
about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not
necessarily in order of importanc e, such as (i) the witness’s candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv)
external contradictions with what was pleaded or put on his behalf, or with established fact or
with his own extra curial statements or actions, (v) the probability or improbability of particular
aspects of his version, (vi) the calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events. . .’11
[37] The only version before this Court, that of the plaintiff, was not challenged
in the sense that he was not cross-examined by Mr Gona. It is a settled principle of
the law that a failure to cross -examine is considered to be an indication that the
party who had the opportunity to cross-examine did not wish to dispute the version
or aspects of the version of the particular witness who was available for cross -
examination during the course of the trial.12
[38] However, the fact that the plaintiff’s version was not rebutted by the Fund
does not mean that it must be accepted without further ado. For the single version
that is before court, must still be measured against the entire body of evidence and
probabilities. In the end, this Court must be satisfied that the facts that have been
set forth by the plaintiff reflect the probability of what took place on 29 June 2022
set forth by the plaintiff reflect the probability of what took place on 29 June 2022
10 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and Others 2003 (1) SA 11 SCA.
11 Ibid, para 5.
12 President of the Republic of South Africa and Others v South African rugby Football Union and Others 2000 (1)
SA 1 (CC). para 61.
at the time and place that he alleges he lost control of his vehicle resulting in him
sustaining serious bodily injury.
[39] I must state as the first point, that the difficulty that this case presents me
with emanates from the less than satisfactory job that the police officers did in
compiling the necessary records pertaining to the accident and in investigating it.
In Senwamadi v Road Accident Fund 13 Fisher J observed that the accident report
form is a staple requirement in the realm of the law relating to motor vehicle
accidents – which includes the law of delict, insurance law and criminal law. Its
recording is a matter of public interest. The form was designed by its draftspersons
so as to solicit information describing all aspects of the accident which would be
relevant to any interest or inquiry such as may be needed in a court case of this
nature. I am in respectful agreement with the sentiments of the learned Judge.
[40] Despite the importance of the accident report, the courts continue to grapple
the issue of the perfunctory compilation of this document and other official records
of the accident, oftentimes to the prejud ice of the claimants in motor vehicle
accident-related claims. This case is regrettably one of such cases. In the extreme
situations, claimants are forced to engage services of road accident scene
reconstruction experts at a high cost, to meet the exigencies of a given case.
[41] In this case, the plaintiff pointed to a sworn statement that he made before
Sgt Vacu in which he detailed how the accident took place. I am alive to the
general rule against self-corroboration. The essence of this rule is that a party is not
allowed to make evidence for himself. One of the exceptions to the rule is where a
previous consistent statement is relied on to rebut an attack on a witness’s
13 Unreported judgment in Senwamadi v Road Accident Fund (2022/2719) [2025] ZAGPJHC 129 (14 February
2025), para 11, 12 and 16.
credibility, not that it serves as proof of the truthfulness of the witness’s
testimony.14
[42] The perfunctory compilation of the sketch of the accident whose description
I gave elsewhere in this judgment is bothersome. Save for this disconcerting
feature of the accident report, I have no reason to doubt its legitimacy in so far as it
is a formal record of the accident in which the plaintiff was involved. It stands to
reason that the accident report per se, stands as corroborative evidence to the
plaintiff’s assertion that an accident occurred on 29 June 2022 in which he
sustained seriou s bodily injuries. Not only that, but the information as can be
gleaned from the hospital records, further confirms that the plaintiff was brought to
the hospital with a history of being involved in an accident.
[43] What remains is whether, on the conspe ctus of the evidence, it can be said,
on a balance of probabilities, that the accident in which the plaintiff sustained his
injuries resulted from the negligent driving of another motor vehicle, a question to
which I turn immediately below.
[44] There is i ndeed a discrepancy between the details of the accident as set out
in the accident report that Sgt Nkukwana compiled, and what the plaintiff later
narrated in his sworn statement to Sgt Vacu, on 19 august 2023, which he repeated
in his evidence in court. A ccording to the accident report, the accident occurred
when the plaintiff was avoiding a collision with stray cattle that were on the road.
An aspect of the plaintiff’s testimony that warrants specific mention in this regard
is the fact that it was on 19 A ugust 2023 that he had the first opportunity to speak
to a member of the SAPS regarding the accident, even though the police arrived at
the accident scene soon after the accident. His evidence on this score was that he
14 Schwikkard, footnote 6 supra, page 112.
was hospitalized for two to three wee ks, and for a further period of approximately
six months at a rehabilitation facility. This finds confirmation from the records of
the Life Beacon Bay Hospital.
[45] It was the plaintiff’s uncontroverted evidence that at the scene of the
accident he did not speak to a member of the SAPS since he was removed from the
scene by the paramedics and conveyed to hospital. Before he ultimately made a
statement to Sgt Vacu, he made a follow up with Sgt Nkukwana when he saw that
time was passing by without any member of the SAPS speaking with him
regarding the accident.
[46] On the plaintiff’s version, the accident occurred at night in an area that was
dark. The emergence of the encroaching vehicle occurred suddenly when he had
reduced the speed of his motor vehicle to below 100km/h in order to negotiate the
curve he was approaching. The encroaching vehicle had its lights on bright. He
suddenly swerved to the left and as he did so, the glare of the encroaching vehicle’s
light had blinded him. In his words, he ‘miscalculated the move to the left’ because
of the glare of the bright lights, resulting in his vehicle hitting the wall of the road
and overturning.
[47] The impression that the plaintiff gave was that save for the what the
community members who converged at th e scene speculated, he did not himself
see what the unknown driver was avoiding or that he was indeed overtaking. He
surmised that he was either avoiding some object, or he was overtaking another
vehicle. What is of importance, though, is the fact that on his version, it is the glare
of the bright lights of the encroaching unknown vehicle that blinded him and
caused him to miscalculate the move he was forced to make to the left. This caused
him to lose control of his vehicle.
[48] It is indeed so, that in the light of the fact that the accident is alleged to have
occurred as a result of the negligent driving of an unidentified vehicle, this Court is
enjoined to carefully assess the plaintiff’s evidence, it being that of a single
witness. The reasons for the need for circumspection are not far to seek – the risk
of fraud and fabrication in cases of motor vehicle accidents where the offending
vehicle has not been identified, is greater.15
[49] This is perhaps an opportune moment for me to interpose and deal w ith the
submission that Mr Gona made, that the Fund believes that the plaintiff’s claim is
fraudulent. This case is by no means the first where the court must deal with the
Fund’s unconventional conduct of litigation in personal injury claims, and until
such time as the Fund turns the tide of its litigation is these claims, it will not be
the last one.
[50] The plaintiff’s claim was lodged a little less than a year after he made his
statement to Sgt Vacu, and a month shy of two years after the accident. Sec tion
24(5) of the Act provides that if the Fund or the agent does not; within 60 days
from the date on which a claim was sent by registered post or delivered by hand to
the Fund or such agent, object to the validity thereof, the claim shall be deemed to
be valid in in all respects. The plaintiff would have been enjoined by section 24(6)
of the Act to wait a period of 120 days before issuing summons against Fund. This
is the period within which the Fund should undertake the assessment, evaluation
and monitor ing of claims, in keeping with its duty to properly, competently
evaluate the plaintiff’s claim with the necessary promptitude. In the present case,
this clearly did not happen.
15 Jones v RAF 2020 (2) SA 83 (SCA), para 22; Mbatha v MMVAF 1997 (3) SA 713 (SCA), para 11; Bezuidenhout v
Road Accident Fund [2003] 3 All SA 249 (SCA) para 12.
[51] The Fund is an organ of State which exercises public power. It performs a
public function which entails the administration of public funds. Its main object is
the compensation of victims who have been rendered vulnerable by motor vehicle
accidents on the country’s public roads. It is also seized with the task of
endeavouring to expeditiously settle claims where this is possible.
[52] However, once summons is issued against the Fund, matters are no longer
left in its hands for it to handle the claim in any way it wishes. Regard ought to be
had, uppermost, to the Rules of Court r egulating court processes, in particular, the
fundamental principle that disputed claims are determined through the adversarial
system of litigation. Worse still for the Fund, in terms of the Practice Directives
governing judicial case management in this Division, all damages claims against it,
among others, are subject to judicial case management as envisaged in Uniform
Rule 37A.16
[53] For the present, I need not deal with the entire extent of the powers of a
judicial case management judge under Uniform Rule 37A, save to state that such
powers include making any directives that would facilitate the trial readiness of the
case. The Rule also entitles the parties to request the intervention of the judicial
case management judge where its trial readiness is, in one way or the other,
hindered by the other litigant. All of this, to ensure the expeditious disposal of
litigation in such matters, among others.
[54] To my mind, had the Fund been serious about investigating possible fraud
surrounding the plaintiff’s claim, at worst for it, an appropriate application would
have been made, far in advance of the date of trial, for the postponement of the
16 This is in terms of Practice Directive 3.2 of the Eastern Cape Practice Directions, by the Judge President, dated 25
June 2019.
matter pending its investigation of the suspected fraud, or on such other terms as
would meet the exigencies of the case. This was not done.
[55] The Rules of Court that govern process and procedure are binding on every
litigant, with no exception. The Fund, as any other litigant, has an obligation to
scrupulously observe them. It simply cannot be that in almost all the cases that
appear in court after the issue of summons, the Fund attempts to arrogate unto
itself the powers to design its own rules to regulate the conduct of the action
proceedings against it to suit its own exigencies. Were this to be allowed it would
render nugatory the very existence of the Rules of Court and the claimants’ rights
of the access to justice and equality before the law. The stance that the Fund seems
to have generally adopted in litigation, of availing itself of a free rein in how the
victims’ claims are processed once they are in court, amounts to abusive litigation
and it should not be countenanced.
[56] There is, no doubt, a need for the Fund to put in place within its internal
systems measures to curb fraudulent personal injury claims against it. Furthermore,
Regulation 2 which I have quoted in the preceding portion of this judgment is
meant to protect the Fund against fraudulent claims where the offending vehicle
has not bee identified. However, those measures are no legitimate reason for it to
disregard the processes of court and the claimant’s procedural rights as provided by
of the Rules. I have already alluded to the fact that there was no objection by the
fund, within the period prescribed by the Act for such an objection, as to t he
validity of the plaintiff’s claim, and no issue was raised regarding the plaintiff’s
non-compliance with the afore quoted regulation.
[57] Once the plaintiff had properly set the present matter down for trial as he
did, he earned a right to have the case heard in court. I have already mentioned that
did, he earned a right to have the case heard in court. I have already mentioned that
during the trial of the case, the Fund was appropriately represented. It was
therefore afforded an opportunity to appropriately defend the action if so advised,
but it elected not to put forward any defence.
[58] It is not available to the Fund to refuse to participate in the proceedings even
though it filed is plea, merely because, for one reason or another, it does not
believe in the genuineness of the plaintiff’s claim. Even though the onus rested
squarely on the plaintiff to establish that the Fund is liable for the damages he
suffered as a result of the accident, it behoved Fund, in the circumstances of the
present case, if it wished, to contest the claim by placing before this Court,
substantial facts that would disturb a prima facie case as may be presented by the
plaintiff.
[59] As held in Galante v Dickson ,17 where the plaintiff alleges that an accident
was caused by the negligent driving of a vehicle by the defendant, it is fair to say
that the court is entitled, in the absence of evidence from the defendant, to select
out of the two alternative explanations of the cause of the accident which are more
or less equally open on the evidence, that one which favours the plaintiff as
opposed to the defendant.
[60] In the final analysis, I make the finding that on the body of the evidence
adduced in these proceedings, the facts pleaded by both parties in their respective
pleadings, and the documents filed of record relating to the accident, the version of
the plaintiff is not implausible. This, coupled to the fact that no evidence in rebuttal
was adduced by the defendant, must necessarily lead to its acceptance as the true
version of how the accident happened. The views that Fund’s members hold t hat
the claim is fraudulent, cannot, without substantial facts pointing to such fraud,
17 1950 (2) SA 460 (A) at 465.
alter this position. The merits of the plaintiff’s claim must be determined in his
favour.
Costs
[61] Ms Da Silva sought Costs on Scale C referred to in Rule 67A, statin g that
the matter is not one of the run -of-the-mill personal injury claims owing to its
inherent difficulties. Chief among those difficulties is that the members of the
SAPS who were responsible for the collection and recording of information
pertaining to the accident and its further investigation, portrayed an inaccurate
picture that required clarification in these proceedings. That inaccurate picture was
that no other motor vehicle was involved in the injury causing accident. For this
reason, Ms Da Silva submitted that this is not a clear case, it involves complex
issues of fact. Based on the same reasons, she further asked that I allow costs of
two counsel.
[62] The test regarding costs consequent upon the employment of two counsel is
trite – it is whet her the employment of two counsel was a wise and reasonable
precaution on the part of the litigant. 18 There is merit in the submissions made by
Ms Da Silva . I make the finding that in this case, it was a wise and reasonable
precaution for the plaintiff to employ two counsel.
[63] For all the foregoing reasons, I make the following order:
1. The defendant is held liable for 100% of the plaintiff’s damages as
may be proven or agreed, resulting from the motor vehicle accident
that occurred on 29 June 2022, a t or near Igoda, on the R72 Road, in
East London.
18 De Klerk v Steven-Lee Properties (297/12) [2013] ZASCA 54 (04 April 2013), at paragraph 21.
2. The defendant shall pay the plaintiff’s costs on scale C referred to in
Uniform Rule 67A, and such costs shall include costs of two counsel
where so employed.
3. The determination of the quantum of th e plaintiff’s damages shall
stand over for determination at a later date.
____________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Adv. A M Da Silva SC
Adv. R Booysen
Instructed by : Phillip and Partners Attorneys INC., East London
For the defendant : Mr S Gona
The Office of the State Attorney, East London
Date heard : 04 August 2025
Date delivered : 02 September 2025