SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: 496/2023
In the matter between:
L[...] Q[...] M[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] In an action for damages, the plaintiff sued the Road Accident Fund (the
Fund), for the sum of R5 000 000.00 (five million rands) under several heads of
damages. Those damages resulted from a motor vehicle accident which occurred
on 22 June 2020 at Phase 1, Scenery Park, in East London, in which he sustained
bodily injury while he was a pedestrian. He was 13 years of age when the accident
occurred.
[2] Since the plaintiff was a minor at the time of issue of summons commencing
action, his mother, Ms N[...] M[...], instituted the action on his behalf. On the date
of hearing of the case, two applications were made. The first, was the substitution
of Ms N[...] M[...], for Mr L[...] Q[...] M[...] who has since attained the age of
majority. The second, was that the merits of the plaintiff’s claim be separated from
quantum of damages as env isaged in Rule 33(4) of the Uniform Rules of Court.
Both applications were granted by consent between the parties. All reference to the
plaintiff shall, henceforth, be to Mr L[...] Q[...] M[...] in his personal capacity.
The pleadings
[3] Chief among the facts that the plaintiff pleaded in his particulars of claim is
that he was walking on the sidewalk of the road in Phase 1, Scenery Park, in East
London, when the unknown insured vehicle knocked him down from behind. The
accident was caused by the sole negligence of the insured driver on several
grounds which do not need to be repeated for the present purposes. 1 As a result of
the accident, he sustained a right radial fracture.
[4] In denying liability for the plaintiff’s claim, the Fund pleaded, int er alia, that
the accident occurred as a result of his sole negligence in one or more of the
following respects:
(a) He failed to avoid the accident when, by exercise of reasonable care and
skill, he could and should have done so.
(b) He failed to ensure his safety whilst the motor vehicle was still in motion.
1 Those grounds appear at paragraph 6 of the plaintiff’s particulars of claim.
(c) He failed to keep a proper lookout.
(d) He suddenly moved to the inside of the road at an unfortunate time.
[5] Alongside this defence, the Fund claimed the apportionment of the
plaintiff’s damages in terms of the Apportionment of Damages Act 34 of 1956 (the
Act).2
[6] The matter was set down for trial on 05 August 2025. On the morning of the
trial, I was informed by Ms Van Vuuren, who represented the plaintiff, and Mr
Mlinganiso, who rep resented the Fund, that the settlement of the claim that the
parties contemplated had collapsed. They also indicated that the point of contention
between the plaintiff and the Fund was the Fund’s stance of apportioning the
plaintiff’s claim by 5%, supposed ly, due to contributory negligence on his part at
the time of the accident.
[7] Whether the Fund was entitled to claim the apportionment of the plaintiff’s
damages became the only point of controversy between the parties. Ms Van Vuuren
and Mr Mlinganiso further indicated that they would seek an opportunity to present
a stated case, as envisaged in Uniform Rule 33(1), for the determination of the
question of law that they would present. This, as it appeared from their further
submissions, that the fact of the accident and the events that unfolded thereafter;
and the issue of negligence on the part of the unknown insured driver were no
longer contentious issues as between the parties. I stood the case down at the
request of the parties until 06 August 2025.
2 Section 1(a) of this Act provides: Where any person suffers damage which is caused partly by his own fault and
partly by the fault of an y other person, a claim in respect of that damage shall not be defeated by reason of the fault
of the claimant but the damages recoverable in respect thereof shall be reduced by the court to such extent as the
court may deem just and equitable having regar d to the degree in which the claimant was at fault in relation to the
damage.
[8] On 06 August 2025, the parties submitted a stated case duly signed on their
behalf by their respective legal representatives. Below I set out, in brief terms, their
statement of agreed facts.
The statement of agreed facts
[9] On 22 June 2020, a motor vehicle accident occurred at Phase 1, Scenery
Park, in East London, in which the plaintiff was knocked down from behind, by a
speeding motor vehicle, whilst walking on the sidewalk of the tarred road. At the
time of the accident, he was 13 years old. The details of the insured motor vehicle
and those of the insured driver are unknown. Following the accident, the plaintiff
was immediately taken to the John Dube Clinic by his father. From there, he was
referred to Empilweni Gompo Community Health Centre.
[10] The plaintiff sustained a fracture of the right distal radius and received
treatment for his injury at Empilweni Gompo Community Health Centre on 22
June 2020; 29 June 2020; and on 03 August 2020. On 22 June 2020, his father,
M[...] M[...] reported the accident at the Scenery Park Police Station. A case of
reckless driving was opened under CAS 112/06/2020. On 13 July 2020, the case
docket was closed. The investigation reached a stage where all existing leads had
been followed up, but without any results.
[11] The accident was caused by the negligent driving of the insured motor
vehicle. The plaintiff has complied with all the necessary prescripts and statutory
provisions of the Road Accident Fund Act 56 of 1996 (“the Act”) in instituting the
claim against the Fund. The whole cause of action arose within this Court’s
jurisdiction.
The question of law
[12] The parties formulated the question of law for the court’s determination as
being whether, based on the agreed facts, the plaintiff was ‘doli capax’ at the time
of the accident.
[13] Since dolus is a state of mind, and differs from culpa which entails conduct
that falls short of a particular standard (the reasonable man standard), and since the
issue to be determined relates to fault on the part of the plaintiff in the form of
negligence,3 it must be accepted that for the present purposes, the parties intended
that this Court determines whether the plaintiff was culpae capax at the time of the
incident.
The parties’ contentions
[14] The plaintif f contends that the Fund bears the onus to prove that he was
culpae capax at the time of the accident. He further contends that on the agreed
facts, there is no support for a finding that he had the capacity to neglect when the
accident occurred. It is th e plaintiff’s contention further, that in law, as a minor at
the time, he lacked capacity to appreciate danger to be avoided. Hence, so the
contention continues, the Fund should be held 100% liable for his damages as may
be proven, which resulted from the accident that took place on 22 June 2020.
[15] The Fund contends that although the plaintiff was a minor, he was not
culpae incapax at the time of the accident, and a 5% reduction of his damages is
appropriate.
3 The distinction was drawn in S v Ngubane 1985 (3) SA 677 (A) at 686, and in Minister of Safety and Security v Van
Duivenboden 2002 (6) SA 431 (SCA), at para 12. See also the di scussion by learned authors JC Van Der Walt & JR
Midgley in Principles of Delict, 4th edition (Lexis Nexis) 2016, para 135 at page 225.
The parties’ submissions
[16] Ms Van Vuuren submitted that as a minor of 13 years of age, the plaintiff
was presumed to lack capacity until the contrary was proved by the party alleging
negligence. In making this submission, she relied on Weber v SANTAM
Versekeringsmaatskappy Bpk,4 where it was held that children under 7 years of age
are culpae incapax, whilst children between the ages of 7 and puberty (12 in the
case of girls and 14 in the case of boys), are rebuttably presumed to lack capacity
to neglect. Ms Van Vurren further submitted tha t the Fund bears the of rebutting
this presumption by proving that the plaintiff was culpae capax – he was aware of
his responsibilities (in crossing a street) and could have been negligent. In this
regard, so the submission went, the capacity to neglect i s a question of fact in a
particular case.
[17] It was further submitted on behalf of the plaintiff that in the absence of facts
supporting a finding that he appreciated the danger of a speeding vehicle, it cannot
be said that the Fund has succeeded in re butting the presumption that operated in
favour of the plaintiff at the time of the accident.
[18] In submitting that the plaintiff’s own negligence contributed to the
occurrence of the accident, Mr Mlinganiso relied on Jones NO v SANTAM Bpk, 5
where it was held that once it is established that a child over the age of 7 but under
the age of 14 has conducted itself in such a manner that its conduct would
ordinarily amount to culpa or negligence, then there arises the necessity of
determining whether that child is culpae capax; and that, once the conduct was
held to be negligent, the child could be held accountable.
The legal principles
4 1983 (1) SA 381 (A).
5 1965 (2) SA 542 (A).
[19] In order to succeed in his 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.6 Where the defendant alleges that the plaintiff’s own negligence
contributed to the occurrence of the injury causi ng accident, the onus is on the
defendant to prove such contributory negligence.7 The test is whether the plaintiff’s
act or omission deviated from the norm of the bonus paterfamilias,8 and whether
that fault contributed to (is causally linked to) the injury.9
[20] Something needs to be said about the manner in which the Fund placed the
plaintiff’s negligence in issue. In its plea, it pleaded the plaintiff’s negligence as the
sole cause of the accident on the grounds afore mentioned. It averred nothing about
contributory negligence on the part of the plaintiff, yet it claimed apportionment of
his damages in terms of the Act. The assertion that the plaintiff’s negligence was
the sole cause of the accident, and a claim for apportionment of damages where no
contributory negligence is specifically pleaded in the alternative, are diametrically
opposed.
[21] After considering several authorities on the issue of contributory negligence
and a claim for apportionment of damages, Laing J, in Abdul Isaac Mjadhu v Road
Accident Fund, 10 said:
‘The correct time and place for the defendant to place in issue the plain tiff’s fault is at the stage
of pleading. In doing so, as the court found in Roma v Road Accident Fund , the defendant sets
out the basis for his or her (or its) case and shapes the nature of the trial proceedings that follow.
6 Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) at 399, 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.
7 Damba v AA Mutual Insurance Association Ltd 1981 (3) SA 740 (E) at 742 -743.
7 Damba v AA Mutual Insurance Association Ltd 1981 (3) SA 740 (E) at 742 -743.
8 Vorster v; AA Mutual Insurance Association Ltd 1982 (1) SA 145 (T) at 151H
9 Bowkers Park Komga Co-operative Ltd v SAR & H, 1980 (1) SA 91 (E), at 95B-E.
10 Mjadhu v Road Accident Fund (2425/2021) [2024] ZAECMKHC 112 (8 October 2024).
If the defendant has not place d in issue any fault on the part of the plaintiff, specifically his or
her (or its) contributory negligence in relation to the event that gave rise to a delictual claim, then
the defendant cannot claim, later, the apportionment of damages.’ 11 (Emphasis added. Footnotes
omitted)
[22] Be that as it may, the parties, in their stated case, appear to have ventilated
this issue with some clarity. I will revert to this aspect in a different context when
time is opportune in this judgment.
Discussion
[23] At the centre of the enquiry is the conduct of the plaintiff which, as alleged,
contributed to the harm he suffered. The question to be asked is whether, based on
the facts agreed to by the parties, the plaintiff had the mental capacity to apprehend
intelligently the danger presented by walking on the sidewalk of the tarred road
where the accident took place. In the first instance, this Court must determine the
plaintiff’s capacity at the time, to appreciate the difference between right and
wrong, and whether he had the ability to act in accordance with that capacity. 12
Thereafter, and if it is found that the plaintiff had the capacity, a determination
must be made as to fault on his part, that is, whether he was negligent or not. Such
negligence will be determined i n accordance with the standard of the ordinary
(adult) reasonable person.
[24] The legal position regarding the capacity as stated in Weber,13 is that there is
a rebuttable presumption that a child below the age of 12 years (in the case of girls)
11 Ibid, at para 16.
12 JC Van Der Walt & JR Midgley in Principles of Delict, footnote 3 supra, para 173, page 272.
13 Supra, footnote 4.
and 14 years in the case of boys, lacks the capacity to neglect until proven
otherwise by the party alleging negligence of the child’s part. In that case, the court
further held that the inquiry was one of fact, and that in each case what must be
determined is wh ether the child in question had developed the emotional and
intellectual maturity to appreciate the danger to be avoided and, if so, to act
accordingly.
[25] The Supreme Court of Appeal in Eskom Holding v Jaques Justin Hendriks,14
confirmed the existence o f the presumption but did away with the gender -based
distinction that the court had made in Weber; and held that a child below the age of
14 years of, regardless of its gender, is presumed culpae incapax , until proven
otherwise.15 The Fund had to rebut this presumption.
[26] It is an agreed fact between the parties that when the accident happened, the
plaintiff was walking on the sidewalk of the road, and he was hit from behind by a
speeding vehicle. This connotes that the plaintiff (then, a minor below th e age of
13 years) was walking in the direction of travel of the vehicles approaching him
from behind. In order to rebut the presumption of lack of capacity, the Fund had to
prove that the plaintiff appreciated the danger to which he was exposing himself o r
its possible consequence, when he walked in the direction of travel of motor
vehicles that approached behind him. It had to thereafter prove that the plaintiff
neglected to act in the manner that a reasonable person would act in order to avoid
the accident in such an instance.
[27] It can be accepted that a child of 13 years of age, would have been taught at
some level, the basic rules of traffic safety as a pedestrian. Based on the agreed
facts, a probability that emerges is that the plaintiff did not appreciate the danger to
14 2005 (5) SA 503 (SCA).
15 Id, para 16.
which he was exposing himself or its possible consequence, when he walked in the
direction of travel of motor vehicles that approached behind him. Another
probability is that he lacked an appreciation of the full import of the danger and
became occupied by his travel that he did not think of the danger of speeding
motor vehicles of which he may have been aware when he walked on the sidewalk
of the road.
[28] In concluding that an 11 years and eight months old child was culpae
incapax at the time of his injury, the Court, in Eskom Holdings 16 held the
following:
‘Experience tells one that the fear of falling from a height is one that develops early in childhood
and the risk of such a fall is unlikely to be one that would be taken impulsively and without
regard to the possible consequences. . . Fascinated by the insulators and disregarding the race, he
then proceeded to traverse out along the cross -arm in order to touch one of the insulators for no
better reason than to feel its texture. It was this conduct that resulted in his injuries and it follows
that it is in relation to this conduct that his emotional and intellectual maturity must be assessed. .
. His conduct gives rise to two possible inferences: either he did not appr eciate the danger to
which he was exposing himself or its possible consequence, or his curiosity was so
overwhelming that he became oblivious of the danger and succumbed to an impulse to touch one
of the insulators. The only other possibility is that he wa s fully aware of the danger but was
unconcerned by it. This is highly unlikely; it would amount to a conscious disregard for his own
life. . .The most likely inference arising from his conduct would seem to be that he lacked an
appreciation of the full imp ort of the danger and became so engrossed in his fascination for the
insulators that he forgot all about the danger of which he may have been aware. . . In my view,
the very conduct in question is indicative of an inability on the part of J. to act in acco rdance
with any appreciation he may have had of the danger involved.17
16 Supra, footnote 14.
17 At 512H-513B-F; see also N Obo N v Road Accident Fund (17439/2013) [2015] ZAGPJHC 77 (27 April 2015),
paras 13, 14 and 15.
[29] Even though the facts in Eskom Holdings are distinguishable from those in
the present case, the Cour’s approach in assessing the child’s capacity to neglect is,
with respect, instructive in the present case.
[30] The Fund’s contention is that the plaintiff was culpae capax at the time of
the accident, notwithstanding that he was a minor below the age of 14 years at the
time he suffered harm. Indeed, Williamson JA, in Jones v SANTAM Bpk,18 held:
‘[I]f it be decided in any particular case that a child under puberty is old enough to have and does
have the intelligence to appreciate a particular danger to be avoided, that he has a knowledge of
how to avoid it or of the precautions to be taken against it, and further that he is sufficiently
matured or developed so as to be able to control irrational or impulsive acts, then it would be
proper to hold that a failure to control himself or to take the ordinary precautions against the
danger in question is negligent conduct on his part; in other words, that child, in relation to the
particular acts or omissions complained of in the particular circumstances, was culpae capax.’
[31] However, the case of Jones, which Mr Mlinganiso relied on, is no authority
for the proposition that a child above 7 years of age but below 14, is culpae capax.
As the Supreme Court of Appeal observed in Eskom Holdings, the court in Jones,
did not determine the question of the rebuttable presumption of absence of capacity
for culpa for a child under 14 years of age.19
[32] I come to the conclusion that the facts agreed to by the parties do not support
the finding that the plaintiff was culpae capax at the time he suffered harm. The
only question that remains is that of costs.
Costs
[33] Ms Van Vuuren submitted that a punitive cost order against the Fund is
warranted, in that, it failed to conduct litigation in this case expeditiously. It
18 1965(2) SA 542 (A) at 554A-B.
19 Id, at para 16.
elected to pursue an indefensible question of law that has no factual basis. For
these reasons, she submitted that costs must be awarded on scale C referred to in
Uniform Rule 67A. Mr Mlinganiso made no pertinent submissions on costs, both
in his oral arguments in court and in the Fund’s heads of argument.
[34] It is indeed so, that the conduct of litigation should promote speedy and cost-
effective resolution of disputes. It is a collaborative effort in which the role of the
legal representatives is the supervision, organization and presentation of evidence
as well as the formulation a nd presentation of argument to arrive at a reasoned
determination of the disputes.20
[35] I need do no more on this score, than re -iterate that the Fund is an organ of
State which exercises public power. It performs a public function which entails the
administration of public funds. 21 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.
[36] In Mashavha v Enaex Africa (Pty) Ltd ,22 it was held that the focus of Rule
67A is not on the conduct of the losing party. It is primarily on the nature of the
case, and, secondarily, on the way that the successful party presented it. The mere
fact that punitive costs were sought by the successful party does not mean that a
higher scale of counsel’s costs ought to be awarded on the party and party scale. It
is once the court has determined that a punitive cost order is warranted tha t the
conduct of the losing party becomes relevant. 23 The Full Court, in Khuza and
20 Venmop 275 ((Pty) Ltd and Another v Cleverland Projects (Pty) Ltd 2016 (1) SA 78 (GJ) at par 7.
21 Mlatsheni v Road Accident Fund 2009 (2) SA 401(E) at paragraphs 12 to 17.
22 Mashavha v Enaex Africa (Pty) Ltd (2022/18404) [2024] ZAGPJHC 387; 2025 (1) SA 466 (GJ) (22 April 2024).
23 Ibid, at para 19.
Another v Khanyiwe ,24 observed that the default position set by rule 67A is that
costs will be recovered on scale A unless there is justification for the application of
a higher scale. The complex nature of the case will be once such justification.
[37] It is rather perplexing, that the Fund, without any sound factual and legal
basis when regard is had to the statement of agreed facts, put forward its defence as
I discussed i t elsewhere in this judgment. This is apart from the fact that the
parties, in any event, proceeded with the statement of agreed facts from the
premise that the Fund pleaded contributory negligence.
[38] How the Fund placed the plaintiff’s negligence in issue is the kind of lack of
precision in the pleadings that Uniform Rule 18(4) aims to avert by providing that
– ‘every pleading shall contain a clear and concise statement of 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.’ The defendant’s failure to observe this Rule, alongside presenting an
untenable defence, warrants being met with disapproval marked by punitive costs.
[39] With that said, in as much as the case did not present unusually complex
issues of law and fact, the question of law that this Court was invited to determine
is an important one when regard is had to the trend, as observed in a plethora of
cases, in this Division, and elsewhere, in which the Fund opts to litigate and raise
untenable defences in circumstances where a matter, such as the present, is capable
of settlement. On this basis alone, there is merit in Ms Van Vuuren’s submissions
on the issue of costs.
[40] In the result, I make the following order:
24 Khuza and Another v Khanyiwe (5009/2018) [2025] ZAECMHC 15; [2025] 2 All SA 463 (ECM) (4 March 2025),
para 27. See also, Mashavha Enaex Africa (Pty) Ltd, supra, at para 16.
1. The plaintiff was culpae incapax at the time he sustained bodily injury as a
result of the motor vehicle accident (‘the accident’) that took place on 22
June 2022 at Phase 1, Scenery Park, in East London.
2. The defendant is held liable for 100% of the plaintiff’s damages resulting
from the accident, as may be proven in due course.
3. The defendant shall pay the plaintiff’s costs on scale C referred to in Rule
67A of the Uniform Rules of Court.
___________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Adv. L Van Vuuren
Instructed by : Sakhela INC, East London
For the defendant : Mr S Mlinganiso
The Office of the State Attorney, East London
Date heard : 05 & 06 August 2025
Date delivered : 16 September 2025