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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 80059/2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 02 October 2025
SIGNATURE
In the matter between:
MBONGELENI BARNABAS MBATHA Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 02 October 2025.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
Kubushi J
Introduction
[1] This is a damages claim by the plaintiff , Mbongeleni Barnabas Mbatha (Mr
Mbatha) for bodily injuries sustained in a motor vehicle accident that occurred on
6 October 2016 in Esijozini. The claim is against the Road Accident Fund (“the
Fund”) as the statutory insurer in terms of the Road Accident Fund Act1 (“the Act”).
[2] The allegations in Mr Mbatha’s particulars of claim is that the claim arose from
a motor vehicle collision that occurred when a motor vehicle with an unknown
registration number (the insured motor vehicle), there and then driven by an
unknown driver (the insured driver ), collided with the motor vehicle bearing
registration number N[...] being driven by Mr Mbatha. The full and further particulars
of the insured driver are alleged to be unknown to Mr Mbatha.
[3] In its plea, the Fund denied the existence of another motor vehicle in the
collision and in the alternative pleaded that the conduct of Mr Mbatha was the sole
cause of the collision. Further alternatively the Fund pleaded contributory negligence
on the part of Mr Mbatha in the event the court made a finding that the insured driver
was the proximate cause of or contributed to the negligence in the accident.
[4] Both liability and quantum were in dispute . To prove liability, Mr Mbatha
personally tendered oral evidence which was supported by the oral evidence of
Mr Qalaza Dlamini (Mr Dlamini) who was said to be a passenger in the motor vehicle
that was driven by Mr Mbatha at the time of the accident. The Fund did not call any
witnesses. For the damages part of the claim , Mr Mbatha filed experts reports in
respect of the injuries sustained. No experts’ reports were filed by the Fund to
counter Mr Mbatha’s experts’ reports.
[5] At the commencement of trial, counsel for Mr Mbatha applied in terms of rule
38(2) of the Uniform Rules of Court for the admission of the evidence of the
orthopaedic surgeon, the occupational therapist, the industrial psychologist and the
orthopaedic surgeon, the occupational therapist, the industrial psychologist and the
actuary, on affidavit. As the application was not opposed, it was granted.
Evidence of Mr Mbatha
1 Act 56 of 1996, as amended.
[6] Mr Mbatha’s testimony is that he was involved in a motor vehicle accident on
6 October 2018. He was the driver of the motor vehicle and had two passengers,
namely, Mr Dlamini and Mr Xolani Sithole (Mr Sithole). Mr Sithole was sitting in the
front passenger seat whilst Mr Dlamini was sitting in the back seat. He was driving
along Esijozini Road at around 20h00. As he was driving, he noticed a cow in the
road and there was a truck approaching on the opposite side of the road. The cow
was on the side of the road where the truck was travelling. As the truck and his motor
vehicle were about to bypass each other, the truck suddenly veered from its side of
the road into the lane of his travel. He swerved off to avoid the imminent collision
with the truck, unfortunately his motor vehicle rolled. He then heard people talking
and he asked for their help. An ambulance was called which pitched up with the
paramedics and he was taken to hospital.
[7] He was first taken to the Church of Scotland Hospital where he was X -rayed.
The next morning, he was transferred to Greys Hospital in Pietermaritzburg where
they specialise with spine injuries, and where he was operated on. He was
hospitalised there for four or five months. After that he was transferred to Dundee
Hospital where he was hospitalised for another five months. From Dundee Hospital
he was transferred to Phoenix Rehab Centre in Durban where he stayed for six
months. When he was released to go home, he was on a wheelchair as he could no
longer walk which is what he was able to do before the collision. He is still
experiencing pain on the spine just below the neck. His left-hand area is also
painful.
[8] At the time of the collision he was employed as a Chief Human Resource
Officer at the Church of Scotland Hospital. Because of being bound to the wheelchair
he can no longer perform the services of a human resource officer. The collision
also affected his voice because since after the collision he speaks slowly. His
also affected his voice because since after the collision he speaks slowly. His
employment has not been terminated as he continues to draw his salary as a chief
human resource officer every month since after the collision. He has, however,
recently received a telephone call from his employer informing him that a process for
the termination of his services has been started. That is, his employer is in the
process of medically boarding him.
[9] Prior to the collision he was a soccer player which he can no longer do. He is
married with four children. At the time of gi ving evidence, he was fifty four years old
and could not remember at what age he was when the collision occurred. He
testified that it is painful for him because he is no longer able to do things that he
was able to do like bathing, going to the toilet and many other things that he was
able to do unassisted. He was at the time going for physical therapy sessions. Since
after the collision he suffered a stroke and is now taking high blood pressure
medication and his health is not good.
[10] He was referred to a statement that he made in terms of section 19 (f) of the Act
wherein he did not say anything about a cow, and a warning statement that he made
to the police and asked to explain the inconsistencies in the statements and the
evidence given in court. His explanation was that it was the first time he wrote such
a statement and did not know what to include and not include in the statements. He
was also asked to explain the discrepancy between the section 19 (f) statement
wherein he mentioned that he was travelling at Mandleni gravel road at Esijozini area
and the evidence in court wherein he stated that he was travelling in Esijozini Road.
His explanation was that the collision happened in E sijozini Road, and he was going
to Mandleni.
[11] Under cross examination not much was added to the evidence that Mr Mbatha
had already tendered except the steps that he took when he saw the cow and the
oncoming truck. Mr Mbatha’s evidence in that regard is that when he saw the cow he
kept to his side of the road and drove at the same speed he was driving before he
saw the cow. He stated that there was no need to reduce the speed as he was
driving at 60km/h and when he saw the truck he dimmed the lights of his motor
vehicle which were on bright at the time he approached the truck. He was also
vehicle which were on bright at the time he approached the truck. He was also
asked why Mr Sithole was not called to give evidence since in his statement Mr
Sithole mentioned that Mr Mbatha was avoiding the cow instead of the truck.
His response was that since the accident he has not met with Mr Sithole and does
not know where he is, currently. On a question from the court, he stated that the cow
was on the left side of the truck.
Evidence of Mr Dlamini
[12] The evidence of Mr Dlamini was that on 6 October 2018 , he was travelling in
the motor vehicle being driven by Mr Mbatha . He was together with Mr Sithole as
passengers in the said motor vehicle. They were from Tugela Ferry Town going to a
place called Empoto. He was sitting in the back seat and more between the two front
seats as he was talking to Mr Sithole. When they passed the bridge on the Esijozeni
Road, they were going uphill and there was a donga on the side of the road. As they
were going uphill there was a black cow in front of them but more on the right side of
the road (on the side of the oncoming traffic). A truck appeared in the opposite
direction to them. As the truck approached in trying to avoid the cow it veered away
from the cow and came towards their lane of travel. The last thing he saw was Mr
Mbatha trying to avoid the truck. Under cross examination , he stated that when he
first saw the truck it was some distance away from the cow. He, also, could not
testify as to what steps Mr Mbatha took in trying to avoid the accident.
Arguments
[13] I deal first with argument relating to the merits of the claim before dealing with
damages.
Plaintiff’s Argument
[14] It was argued on behalf of Mr Mbatha that he has made out his case on a
balance of probabilities. The contention is that the case is clear. There is no dispute
that there was a collision. It is common cause that Mr Mbatha was seriously injured
in the collision and is now a paraplegic, so the argument went.
[15] The submission made was that the undisputed evidence of Mr Mbatha that
there was a truck that swerved into his lane of travel was corroborated materially by
Mr Dlamini. A further submission was that negligence should be attributed to the
driver of the unidentified truck and not to Mr Mbatha, because there is no evidence
before court to dispute that the unidentified driver of the truck was in fact negligent.
The contention being that had Mr Mbatha not have swerved to the left, there would
The contention being that had Mr Mbatha not have swerved to the left, there would
have been a head on collision with the truck. Mr Mbatha did everything possible that
any driver would have done under the circumstances. This, however, is not the test,
the test is whether Mr Mbatha in the situation he was , did what a reasonable person
would have done.
Argument by the Fund
[16] The defendant’s argument on the merits was limited to the fact that Mr
Mbatha’s evidence is that he saw the truck and then saw the cow by means of the
lights of the truck. The submission was that every driver has a duty to always keep a
proper lookout on the road , even in a sudden emergency. In this regard counsel
referred to the judgment in RAF v Grobler (Grobler),2 where the following was stated:
“…In a situation like the present (sudden emergency situation ) the proper
approach is not to confine the enquiry into the negligence to the conduct of the
drivers from the moment they become embroiled in an emergency. The inquiry
must be extended to cover what steps the driver took to avoid the impending
emergency. If he/she had the opportunity to take measures ahead of the
emergency to avoid the accident, and he/she failed to do what a reasonable
person in a similar circumstances would have done, then she/he would be
negligent.” (emphasis added)
[17] He further referred to an unreported judgment of this Division in
Sedumemanyatela v RAF (Sedumemanyatela),3 where the court stated that –
“Even when an approaching vehicle is on its correct side of the road, a driver
on his correct side may assume that the former will return timelessly to its
correct side. But this assumption does not entitle a driver on the correct side of
the road to remain passive in the face of threatening danger. As soon as the
danger of a collision becomes evident, he is under the duty to take reasonable
steps to avert one.”
[18] On the basis of the above judgments, it was argued that when one sees
livestock on the road, there is already a situation that can become dangerous, and a
driver has to take precautions. Mr Mbatha’s evidence is that the only thing he did
was to dim lights and to keep to his side of the road. He did not see the need to
reduce speed because he was travelling at 60 km/h. The submission was that Mr
2 [2007] 6 SA 230 (SCA) at para 30.
2 [2007] 6 SA 230 (SCA) at para 30.
3 Case Number 65678/2012 delivered on 13 May 2014 at para 21.
Mbatha could have taken steps to avoid the collision by reducing speed, seeing that
the accident happened at night. It was, therefore, argued that Mr Mbatha did not take
reasonable steps that were available to him under the circumstances to avoid the
collision.
[19] It was furthermore argued that Mr Dlamini who was a passenger in the motor
vehicle did not see the cow and the truck at the same time as Mr Mbatha, and his
evidence could not be of assistance to Mr Mbatha. Consequently, it was submitted
on behalf of the Fund that the court make a finding of an apportionment of 50/50
negligence between Mr Mbatha and the insured driver.
Authorities
[20] The claim in this instance falls under section 17(1) (b) of the Act. Section
17(1)(b) of the Act stipulates the following:
“17 Liability of Fund and agents – (1) The Fund or an agent shall
(a) …
(b) subject to any regulations 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 (third party) for any loss or damage
which the third party has suffered as a result of any bodily injury to himself or
herself … caused by or arising from the driving of a motor vehicle by any
person …, if the injury … is due to the negligence or other wrongful act of the
driver or owner of the motor vehicle …” (own emphasis)
[21] From the above provisions it is clear t hat a claim for compensation for bodily
injuries by the Fund under section 17(1) (b) of the Act arises from a motor vehicle
accident where the identity of the driver or owner of the motor vehicle cannot be
established. The bodily injur ies must have been caused by the negligence or
wrongful act of the unknown driver. The jurisdictional facts for compensation are that:
the claimant must have suffered bodily injuries; such injuries must have been caused
by or arisen from the driving of a motor vehicle by any person; and the injury must be
due to the negligence or other wrongful act of a driver or owner of the motor vehicle.
Issues for Determination
[22] It is common cause, in this instance, that the plaintiff, Mr Mbatha, has suffered
bodily injuries. The Fund’s liability to compensate Mr Mbatha accordingly turns on
the question of whether the driver of the unidentified motor vehicle was negligent and
whether such negligence , if proven, caused the damage suffered by Mr Mbatha. If
so, the Fund is statutorily liable to compensate Mr Mbatha for his proven or agreed
damages. The slightest degree of negligence on the part of the insured driver is
sufficient to satisfy the requirements of section 17 (1) of the Act.4
Discussion
[23] The onus to prove this rests on Mr Mbatha , on a balance of probabilities .
However, to the extent that contributory negligence is alleged, to avoid liability, the
Fund must produce evidence to disprove the inference that the collision was caused
by the insured driver’s negligence. Failing which, the Fund is liable for Mr Mbatha’s
damages.5
[24] For all the reasons that follow hereunder, it is my view that Mr Mbatha has not
proved his claim on a balance of probabilities.
[25] Firstly, I find that the evidence given by Mr Mbatha does not sustain the claim
as set out in his particulars of claim. As it has been held, a successful delictual claim
entails the proof of a causal link between a defendant’s actions or omissions, on the
one hand, and the harm suffered by the plaintiff on the other hand. 6 As per Mr
Mbatha’s particulars of claim , his claim arose from a motor vehicle collision that
occurred when his motor vehicle with registration number N[...] “collided” with the
insured motor vehicle. Yet, his evidence in court is that the damages he suffered
arose fro m the accident that occurred when his motor vehicle rolled over as he
arose fro m the accident that occurred when his motor vehicle rolled over as he
prevented colliding with the insured motor vehicle. According to his evidence, the
4 Goode v SA Mutual and Fire Insurance 1979 (4) SA 301 (W).
5 Fox v RAF (A548/16) [2018] ZAGPPHC 285 (26 April 2018) para 12.
6 Oppelt v Department of Health 2016 (1) SA 325 CC para 35.
insured motor vehicle veered into his lane of travel when it bypassed the cow that
was in the road. The evidence specifically indicates that there was no “collision”
between the two motor vehicles. Mr Mbatha’s reliance on the collision that happened
between the two motor vehicles in his particulars of claim is not proven by his
evidence. He has, as a result, failed to establish the casual connection between the
damages he is claiming and the actions of the insured driver.
[26] It is trite that a litigant falls or stands by the pleadings. If what it alleges in the
pleadings is not proved by evidence, or as is the case, is contrary to the evidence,
the testimony of the plaintiff stands to be dismissed. 7 On this issue alone, Mr
Mbatha’s claim ought to be dismissed.
[27] Secondly, Mr Mbatha’s evidence does not establish that the damages he is
claiming for the injuries he suffered in the accident , were caused by the negligent
driving of another person.
[28] The following was said in regard to the onus of proof of negligence i n Arthur v
Bezuidenhout & Miery:8
“There is in my opinion, only one enquiry, namely: has the plaintiff having
regard to all the evidence in the case, discharged the onus of proving on a
balance of probabilities the negligence he has averred against the defendant?”
[29] In his particulars of claim, Mr Mbatha alleges at paragraph 5 thereof that –
“The aforementioned collision has been caused solely by the exclusive
negligence of the unknown insured driver, who was negligent in one, more or all
of the following aspects:
He/She drove at a speed that was excessive in the circumstances;
He/She failed to reduce speed of his/her vehicle when he/she ought to and
should have done so;
He/She failed to keep any proper lookout;
7 See Pardon v Road Accident Fund (689/21) [2024] ZAMPMHC 36 (10 June 2024).
8 1962 (2) SA 566 (A).
He/She failed to apply the brakes of his/her vehicle either timeously, adequately
or at all;
He/She failed to keep the vehicle he/she was driving under proper or effective
control;
He/She failed to take any or adequate steps to avoid the accident when by the
exercise of reasonable care and diligence he/she could and should have done
so.”
[30] On the other hand, the sum total of Mr Mbatha’s evidence is that a s he was
driving along the road, he noticed a cow on the right side of the road, and a truck
approaching on the opposite side of the road. As the truck and his motor vehicle
were about to bypass each other, the truck suddenly veered from its side of the road
into the lane of his travel. He swerved off to avoid the imminent collision with the
truck, unfortunately his motor vehicle rolled . The allegation is that his injuries were
caused by the negligent driving of the driver of the truck in swerving in his (Mr
Mbatha’s) lane of traffic.
[31] None of the conduct of the insured driver alleged above, was established by Mr
Mbatha in his evidence. There is also no allegation in the particulars of claim that the
negligence of the unidentified driver was as a result of swerving in the lane of travel
of Mr Mbatha, thus causing Mr Mbatha to veer off the road.
[32] The evidence of his witness , Mr Dlamini , does not come to Mr Mbatha’s
assistance, as h e is simply regurgitating the evidence of Mr Mbatha as it is.
Consequently, Mr Mbatha has failed to establish the negligence of the insured driver
and that the injuries he sustained were caused by the negligent driving of the insured
driver. There is, thus, no casual link between the injuries suffered by Mr Mbatha and
the driving of the insured motor vehicle.
[33] Lastly, similarly as in Ninteretse v RAF (Ninteretse),9 wherein the court made a
finding that the plaintiff wanted to escape liability based on sudden emergency, in
9 (29586/13) [2018] ZAGPPHC 493 (2 February 2018).
this instance, Mr Mbatha sought to posit liability on the insured driver by claiming
sudden emergency.
[34] Mr Mbatha sought to insinuate sudden emergency when he testified that when
the insured motor vehicle swerved in his lane of travel he immediately veered of the
road to avoid a head on collision with the insured motor vehicle. The court in Grobler,
held that in a sudden emergency situation, the proper approach is not to confine the
inquiry into the negligence to the conduct of the driver from the moment they became
embroiled in an emergency. The inquiry must extend to cover what steps a driver
took to avoid the impending emergency. If a driver had an opportunity to take
measures ahead of the e mergency to avoid the accident, and he failed to do what a
reasonable person in similar circumstances would have done, then he /or she would
have been negligent.
[35] It is the evi dence of Mr Mbatha that he saw the cow before the insured motor
vehicle appeared. When asked during cross examination what steps he took , he
stated that he kept on his side of the road and continued driving at the same speed .
His contention was that he did not see any need to reduce speed as he was
travelling at 60 km/h on a gravel road. And when, the insured motor vehicle
appeared he only deemed the lights which were on bright at the time.
[36] As it was stated i n the case of Sedumemanyatela even when an approaching
vehicle is on its incorrect side of the road, a driver on his correct side may assume
that the former will return timeously to its correct side. But this assumption does not
entitle a driver on the correct side of the road to remain passive in the face of
threatening danger. As soon as the danger of the collision becomes evident, he is
under a duty to take reasonable steps to avert one.
[37] I am in agreement with the Fund’s argument that when one sees livestock in
the road, particularly at night, already there is a situation that can be very dangerous,
the road, particularly at night, already there is a situation that can be very dangerous,
a driver has to take precaution. However, the evidence indicates that Mr Mbatha
saw the truck and also saw the cow before the collision and the only steps he took
was to dim his lights and confine himself to his side of the road. He did not reduce
his speed. This, in spite of appreciating that it was 20h00 at night and was driving on
a gravel road. There was a cow on the road and there was a truck coming from his
opposite direction. There was a threatening danger, and he was under a duty to take
evasive steps to avoid that danger. T his he could have done by merely reducing
speed. He, however, failed to do s o. It is my view that a reasonable driver in the
position of Mr Mbatha would have done so.
[38] I am in alignme nt with the statement by my brother Moshoana J in Madlala v
Road Accident Fund,10 that claims falling under section 17(1)(b) of the Act (like in this
instance) are problematic, particularly where the Fund does not present any version.
Litigants seem to have taken a view that once evidence is presented that an
unidentified motor vehicle caused the accident, th e court, as a matter of course ,
must be satisfied that the Fund is liable.
[39] Nevertheless, the judgment of my brother Raulinga J in Ninteretse11 where he
remarked as follows, is instructive:
“I have already intimated in this judgment above that the plaintiff bears the onus
to prove on a balance of probabilities that the insured driver was negligent and
that the negligence was the cause of the collision from which he sustained the
bodily injuries. There is no onus on the defendant to prove anything. Even in
the instance where the defendant has not tendered evidence to rebut the
evidentiary burden of the prima facie case presented by the plaintiff in this
case, the plaintiff may not succeed with his claim depending on the nature and
weight of the evidence so tendered.”
Conclusion
[40] Consequently, the plaintiff’s claim is dismissed with costs on scale A.
E.M KUBUSHI
10 (RAF) (65311/17) [2025] ZAGPPHC 153 (14 February 2025) para [7].
11 At para 28.
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of Hearing: 21 February 2025
Judgment delivered: 02 October 2025
APPEARANCE:
For the Plaintiff: S. Zimema
Instructed by: Mjali and Zimema Attorneys
For the Defendant: Ms. TK Gaokgwathe
Instructed by: State Attorney