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, PRETORIA
CASE NUMBER APPEAL: A309/24
CASE NUMBER A QUO: 52438/2018
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates NO
In the matter between:-
RISINGA THOMAS MABUNDA Appellant
and
ROAD ACCIDENT FUND
Link Number: 4[...] Claim Reference Number:
5[...] 1[...]
Respondent
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This judgment is handed down by way of electronic mail to the parties via the
e-mail address indicated in the respective practice notes. The date of the
judgment is deemed to be 18 September 2025
ORDER
Potteril J, Reid J et Leso AJ
The following order is granted:
(i) The appeal is upheld.
(ii) The order of the court a quo is replaced with the following order:
“1. The defendant is ordered to pay to the plaintiff 100% of its
proven damages.
2. The quantum of the damages is postponed sine dies.
3. The defendant is ordered to pay the costs of the plaintiff.”
(iii) The cost of this appeal is to be paid by the respondent.
JUDGMENT
Reid J
Introduction
[1] This appeal relates to damages and apportionment of damages
resultant from a motor vehicle collision that occurred on 24 September
2016. The appellant instituted a delictual claim against the Road
Accident Fund (RAF) in terms of the Road Accident Fund Act 56 of
1996, ("the Act") for damages suffered as a result of the collision.
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[2] The appeal is against the judgment and order granted by a single judge
(Mbongwe, J) dated 31 July 2023 and supplemented by reasons
delivered on the 20 June 2024 . The appeal is against the issue s of
merits and the apportionment of liability.
[3] This appeal is with leave from the court a quo.
Factual background
[4] After the plaintiff instituted the claim for damages, t he RAF filed a
notice to defend the action and subsequently filed a plea to the
plaintiff's claim. The RAF did not react to the plaintiff’s numerous
requests to attend a pre-trail meeting.
[5] The plaintiff filed a discovery affidavit and expert reports in support of
his claim , but the defendant failed to file any discovery affidavit or
expert reports.
[6] Due to the RAF's material failure to comply with its obligations in terms
of the Rules of Court (in failing to attend a pre -trial hearing, failing to
discover and the possible filing of expert reports) , an order to compel
compliance was granted on 16 September 2021 in the Trial
Interlocutory Court. The RAF did not react to the order to comply with
the Rules.
[7] The RAF's defence was consequently struck on 22 February 2022 in
the Trial Interlocutory Court and the Registrar was authorised to
allocate a date for the trial to proceed on a default basis.
[8] The trial was set down for hearing in the Trial Default Judgment Court
on the 31 of July 2023. The default judgment as granted is the subject
matter of this appeal.
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Judgment under appeal
[9] The court a quo granted a partly favourable judgment to the plaintiff on
31 July 2023. The RAF was held liable to compensate the plaintiff for
50% of his proven or agreed damages.
[10] In the court a quo the plaintiff testified viva voce. In addition to the oral
evidence of the plaintiff, the following was before the court a quo : a
sketch plan of the scene of the collision, photographs of the scene of
the collision, and photographs of the damaged vehicles.
[11] The appellant's undisputed evidence (as plaintiff a quo ) can be
summarised as follows:
11.1. On 24 September 2016 he was driving from Lanseria to
Randburg in Malibongwe Drive, Randburg in the extreme left -
hand lane.
11.2. He entered a robot -controlled intersection whilst the traffic lights
indicated green and thus in his favour.
11.3. A motor vehicle (the insured vehicle) approached from his
lefthand side, from the N1 off-ramp and did not stop at the robot
which indicated red for the insured vehicle . The appellant
attempted to apply the brakes, however the insured driver was
too close, and he collided with the insured vehicle.
11.4. The appellant’s vehicle collided with the right -hand side of the
insured vehicle, next to the passenger door.
11.5. The appellant was travelling at approximately 40 kilometres per
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hour.
11.6. The appellant could not swerve to avoid the collision because
there were other vehicles next to him in the right -hand lane and
a curb to his left-hand side. He applied brakes, but he could not
avoid the collision. The appellant testified that "There was no
other plan, nothing else except applying my brakes."
11.7. The appellant did not have any other options available, to avoid
the collision.
[12] The court a quo found the appellant 50% liable for his damages, on the
basis that the appellant could have avoided the collision. The court a
quo reasons:
"[7] The plaintiff's evidence in court was that he was travelling at
40km per hour approaching the intersection, when he noticed
the insured vehicle entering the intersection from his left -hand
side, despite the robot being red for it. There were other motor
vehicles driving in the same direction as him on the lane to his
right hand side. The plaintiff testified that he could not apply his
brakes or swerve and the front of his vehicle collided with the
insured vehicle on the rear passenger door backwards; meaning
that the front portion of the insured vehicle from the driver's door
had passed the plaintiff's vehicle when the collision occurred.
[8] I found, on the plaintiff's version, considering the portion of
the insured vehicle his (vehicle) collided with, that the plaintiff
could not be found to have been without blame, particularly it
being in an intersection. The front half of the insured vehicle had
passed his before the occurrence of the collision. The plaintiff
could have avoided the collision, in my view."
(own emphasis)
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[13] The court a quo thus finds the appellant contributary negligent in that
the appellant could have avoided the collision.
[14] The court a quo also finds that the plaintiff did not apply the brakes of
his vehicle in an attempt to avoid the collision.
Legal principles
[15] It is trite law that the onus rests with the appellant (plaintiff) to prove
negligence on the part of the defendant. See: Ntsala and Others v
Mutual & Federal Insurance Co Ltd 1996 2 SA 184 (T).
[16] In Rondalia Assurance Corporation of SA LTD v Mtkombeni 1979 (3)
SA 967 (AD) at 972A-D, the Appellate Division (as it was known then)
per Galgut AJA said:
“However, each case in which it is said that a motorist is
negligent must be decided on its own facts. Negligence can only
be attributed by examining the facts of each case. Moreover,
one does not draw inferences of negligence on a piecemeal
approach. One must consider the totality of the facts and then
decide whether the driver has exercised the standard of conduct
which the law requires. The standard of care so required is that
which a reasonable man would exercise in the circumstances
and that degree of care will vary according to the circumstances.
In all cases the question is whether the driver should reasonably
in all the circumstances have foreseen the possibility of a
collision.”
[17] What is of importance is that the facts before the court should be
evaluated in toto before the court can come to a conclusion. An
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inference of negligence can only be established if supported by the
facts of the case.
Analysis
[18] The court a quo finds the appellant contributory negligent on the basis
that “The front half of the insured vehicle had passed his before the
occurrence of the collision.”
[19] This is factually incorrect, as the evidence before the court a quo as
supported by the viva voce evidence and the photographs of the
damaged vehicles, indicate that the damage was on the right hand
passenger side of the insured vehicle.
[20] The evidence before the court a quo was that the appellant applied his
brakes. He testified that there was no other action that he could take to
avoid the collision. The facts indicated that there was traffic traveling in
the same direction to the appellant’s right side, and an off -ramp to the
left side. The facts indicate that the appellant attempted to avoid the
collision by applying the brakes of his vehicle.
Finding
[21] The court a quo based its findings on incorrect facts. The court a quo
incorrectly finds that the appellant did not apply his brakes. He also
incorrectly finds that the appellant collided with the right hand back
door of the insured vehicle , where the evidence was that it was the
right hand passenger door of the insured vehicle.
[22] The viva voce evidence of the appellant, as well as the documentary
evidence presented to the court a quo, are facts that were proven in the
court a quo . These facts do not support an inference of negligence
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from the appellant.
[23] The only inference made from the facts before the court a quo would
have been that the insured driver was 100% negligent and caused the
collision. It follows that the respondent should be 100% liable for the
damages incurred by the appellant as a result of the collision.
[24] For the reasons set out above, the appeal is to be upheld.
Costs
[25] The general principle is that the successful party is entitled to its costs.
I find no reason to deviate from this principle.
[26] The defendant a quo should be ordered to pay the costs of the trial a
quo. Equally, the respondent should be ordered to pay the costs of this
appeal.
Order
In the premise, I make the following order:
(i) The appeal is upheld.
(ii) The order of the court a quo is replaced with the following order:
“1. The defendant is ordered to pay to the plaintiff 100% of its
proven damages.
2. The quantum of the damages is postponed sine dies.
3. The defendant is ordered to pay the costs of the plaintiff.”
(iii) The cost of this appeal is to be paid by the respondent.
FMM REID
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JUDGE OF THE HIGH COURT
GAUTENG DIVISION JOHANNESBURG
I agree
S. POTTERILL
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree
J.T. LESO
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
DATE ARGUED: 3 SEPTEMBER 2025
DATE OF JUDGMENT: 18 SEPTEMBER 2025
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APPEARANCES:
FOR APPELLANT:
COUNSEL: ADV M VAN ROOYEN SC
ATTORNEYS: KRITZINGER ATTORNEYS
Email: clerk2@Ic1181.co.za
Ref: Ms A Kritzinger / KD0898-J19187
FOR RESPONDENT: NO APPEARANCE