IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NO: 210/2024
In the matter between:
NENE PAMO FEZILE NONGCEBO PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date and time for hand -down is deemed to be
01 October 2025 at 12:00.
JUDGMENT
(1) REPORTABLE:NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
01 OCTOBER 2025
SIGNATURE DATE
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Mangena AJ
[1] Ms Nongcebo Fezile Nene (the plaintiff) instituted a civil claim against the Road
Accident Fund (the fund/ the RAF) for payment of a sum of R1 200 000.00. The claim
was for the injuries she sustained when the motor vehicle she was driving collided with
another motor vehicle at Mayflower on 1 November 2020. The fund is defending the
claim and denies liability for the damages she suffered as a result of the injuries arising
out of the accident.
[2] At the outset, I must say that had the RAF been diligent in the performance of
its statutory obligations , this matter could have been resolved without involving the
court. I say so because the fund came to court without a version regarding how the
accident happened and whether there was any contributory negligence to attribute to
the plaintiff. It was only after hearing the ev idence of the plaintiff (the only witness to
testify) that counsel for the defendant proposed in the written submissions that
negligence be apportioned 80/20 in the plaintiff’s favour. This is not a proper way of
conducting litigation , more especially when the judicial resources are so scarce to
adequately give proper service to the needs of society. Had the RAF performed its
obligations and investigated this matter as it is in law obliged to, the time expended on
this matter could have been used on other deserving cases.
[3] The facts which gave rise to the claim are as follows: the plaintiff was driving
on her designated lane when another motor vehicle from the opposite direction came
onto her lane. The approaching vehicle ’s bonnet was open , and the driver was not
able to see where he was going as it was moving in a zig-zag motion. She saw the car
at a close distance. She reduced the speed and moved towards the left-hand side of
the road. The oncoming motor vehicle collided with her while she was stationary and
outside the road.
[4] She was cross-examined on the steps she took to avoid the collision, to which
[4] She was cross-examined on the steps she took to avoid the collision, to which
she replied that she reduced the speed, applied the brakes and moved outside of the
road. She further stated that there was nothing more she could have done. There was
no re-examination.
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[5] Both c ounsel requested to submit written closing arguments , to which I
reluctantly agreed. Mr Tshavhungwe submitted on behalf of the plaintiff that the
evidence shows that the insured driver is solely to blame for the accident. Ms Ndubani,
on behalf of the defendant , contends otherwise and urges me to find contributory
negligence on the part of the plaintiff. It is so that a court , in assessing the evidence
tendered during trial , should consider it holistically , including the answers given in
cross-examination. Evidence is not only evidence when given in chief. The answers
given to questions put during cross-examination form part of the witness’s evidence.
[6] Considering the evidence tendered by the plaintiff in its totality , I am unable to
find any contributory negligence on her part. Her evidence was clear, logical , and in
my view, she answered all questions put to her frankly, honestly and without hesitation.
She was able to describe the road and the circumstances under which the accident
happened. From her evidence , it is clear that she took all the necessary steps a
reasonable driver is expected to take when faced with a potential accident.
[7] The statement that a driver has a duty towards other road users and an
obligation to avoid an accident does not mean that a driver must do something
extraordinary. A careful and reasonable driver is required to take reasonable steps to
avoid the collision. She owes that duty first to herself in line with the law of self-
preservation, and should not be expected to put herself in danger in order to avoid a
collision with a vehicle which is being driven recklessly or negligently in the incorrect
lane. In the evaluation of evidence regarding negligence, I do not think it is appropriate
to expect a driver to perform miracles in an attempt to avoid negligence. A reasonable
driver should be expected to do what a reasonable driver could do when faced with a
similar situation, nothing more and nothing less.
similar situation, nothing more and nothing less.
[8] The plaintiff took all the reasonable steps required to avoid the collision , and I
find no contributory negligence on her part.
[9] In the result, the following order is made:
1 The defendant is ordered to pay the plaintiff 100% of her proven or agreed
damages.
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2 The defendant is ordered to pay the costs on a party and party scale B of the
High Court.
MANGENA AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Appearances
For the plaintiff: Adv Tshavhungwe
Plaintiff Attorneys: Nkgadima and Associates attorneys
For the Defendant: Adv Ndubani
Defendant attorneys: State Attorney
Mbombela
Date Heard: 28 AUGUST 2025
Judgment Delivered: 01 OCTOBER 2025