IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 11438/2018
In the matter between:
JODY JOHN KRUGER PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Kruger v Road Accident Fund (Case no 11438/2018) [2025]
ZAWCHC … (DDMMYY)
Coram: NUKU J
Heard: 8 and 23 September 2025
Delivered: 27 October 2025
Summary: Delictual claim – Plaintiff driving his motorcycle into the back of a
vehicle that ran a red light at an intersection – plaintiff unable to provide evidence
of events immediately before the collision – both drivers were negligent, and their
negligence contributed equally to the collision.
ORDER
(a) The defendant is liable to compensate the plaintiff for 50% of the damages
the plaintiff can prove in due course.
(b) The defendant shall pay the plaintiff’s costs of suit on a party -and-party
scale, including costs of counsel on scale B.
JUDGMENT
Nuku J:
[1] The plaintiff was involved in a motor vehicle collision early in the morning
of 24 October 2015 at the intersection of Spine Road and Park Avenue in Mitchells
Plain while riding his motorcycle ( “the collision”). He rear -ended a green Nissan
Sentra (“the insured vehicle”) that had entered the intersection from Park Avenue
and turned right onto Spine Road when the traffic lights for vehicles approaching
from Park Avenue were red.
[2] As a result of the collision, the plaintiff sustained various orthop aedic and
head injuries. He submitted his claim with the defendant under the Road Accident
Fund Act 56 of 1996, as amended ( “the Act ”), and instituted these proceedings
after the defendant failed to compensate him.
[3] The parties agreed that the matter would proceed on a separate issue,
namely, the determination of the defendant’s liability to compensate the plaintiff,
with the amount of the plaintiff’s claim to be decided later.
[4] In his particulars of claim, the plaintiff pleaded that the collision was caused
by the negligence of the insured driver , who was negligent in one or more of the
following respects:
(a) he failed to keep a proper lookout;
(b) he failed to keep the insured vehicle under any or proper control;
(c) he drove at an excessive speed in the circumstances;
(d) he failed to apply the brakes adequately, timeously, or at all;
(e) he failed to avoid the collision when, by exercise of due and proper care, he
could and should have done so; and
(f) he failed to pay due regard to the prevailing traffic conditions and in
particular to the plaintiff.
[5] The defendant denied that the collision was caused by the negligence of the
insured driver and pleaded that it was the plaintiff’s negligence which was the
cause of the collision. The defendant pleaded that the plaintiff was negligent in one
or more or all of the following respects:
(a) he failed to keep a proper lookout;
(b) he failed to keep the motorcycle under proper and/or adequate control;
(c) he drove at a speed which was excessive and/or unsafe under the prevailing
circumstances;
(d) he failed to apply the brakes adequately, timeously, or at all;
(e) he failed to avoid the collisio n when, by exercise of due and proper care, he
could and should have done so;
(f) he failed to pay adequate or proper or any regard to the presence of other
road users upon the said road, in particular the insured vehicle;
(g) he failed to give adequate or proper warning of his approach;
(h) he drove his motorcycle whilst under the influence of intoxicating liquor;
and
(i) he failed to wear the proper motorcycle attire, inclusive of the required
motorcycle/crash helmet.
[6] In the al ternative, the defendant pleaded that if the insured driver was
negligent, his negligence was not the cause of the collision . In the alternative, the
defendant pleaded that the combined negligence of the plaintiff and the insured
driver caused the collision.
[7] The plaintiff testified at trial and called one witness, Mr. Fabian Appolis
(“Mr. Appolis ”). He confirmed being involved in the collision on the day in
question, but had no recollection of how the collision happened. He testified that
they had spent the night at a friend’s house, where they had a braai and drank a few
beers. At the time of the collision, he had not obtained a driver's licence.
[8] During the night, they decided to visit another friend's house, where they
played some games. At some point, he de cided to leave and go home. On his way
home, he rode his motorcycle with his brother, Mr. Appolis, and one of his friends
who he could only identify as JP, also on their motorcycles.
[9] At one of the intersections along the way, he took a wrong turn and
separated from his group. At some point, he found his way back to Spine Road,
where he drove at approximately 90 km/h even though the speed limit is 80 km/h.
Spine Road is a dual carriageway with two lanes in each direction. An elevated
grassy island separates the carriageways, and he was driving in the inner lane.
[10] All he remembers is that the traffic lights were green for cars on Spine Road
when he reached the intersection with Park Avenue. He then went through the
intersection and cannot recall what happened afterward. His memory only returned
when he was in the hospital.
[11] When asked about the statement he made describing how the collision
happened, he claimed that his previous legal representative helped him draft it
because he had no recollection.
[12] Mr. Appolis testified that they spent the first part of the night at their friend’s
house, Mr. Ziegers, where they had a braai and a few beers. Later, they decided to
go to the plaintiff’s house, but one of their friends’ motorcycles had a t yre
problem. They decided to first escort this friend home before going to the
plaintiff’s house.
[13] When this friend got home, he dropped his motorcycle, got into a bakkie,
and they continued with their original plan to go to the plaintiff’s place. On their
way, they all drove along Park Avenue, which had working street lights.
[14] When they reached the intersection with Spine Road, they stopped because
the traffic light was red for traffic on Park Avenue. That is when they realized that
the plaintiff was no longer driving with them.
[15] While waiting at the intersection, he saw the insured vehicle, with its lights
off, approach from the other side of Park Avenue. It ran a red light and made a
right turn onto Spine Road without signalling. Shortly after making the turn, the
plaintiff collided with the right rear of the insured vehicle. He believed that the
plaintiff might have been exceeding the 60 km/h speed limit. That concluded the
plaintiff's evidence, and the defendant ended its case without calling any witnesses.
[16] It was argued on the plaintiff’s behalf that the collision was caused solely by
the negligence of the driver of the insured vehicle, who (a) entered the intersection
in complete disobedience of the red traffic light , (b) drove the insured vehicle
without putting its headlights on, and (c) did not signal his intention to turn right at
the intersection.
[17] Plaintiff’s counsel began his argument by acknowledging the general rule
that the presence of a traffic light at an intersection, and the fact that the light
favours a driver, does not exempt that driver from the duty to recognize the
reasonable possibility of, and to keep a proper lookout for, traffic that has entered
the intersection legally but may still be present within it.
[18] Plaintiff’s counsel, however, argued that this is not the case we are dealing
with here, as the uncontroverted evidence shows the insured vehicle entered the
intersection while completely disobeying the red traffic light. In respect of motor
vehicles entering intersections in complete disregard of the red traffic light , he
submitted, on the authority of Santam Insurance Co. Ltd1, that the general rule
does not apply.
[19] Plaintiff’s counsel referred this Court to a passage in the Law of Collisions
in South Africa , where the author describes a driver who crosses against a red
traffic light at an intersection as virtually a trespasser.2
[20] Counsel, however, acknowledged that the author does not suggest that the
obedient driver has a right to proceed heedlessly because, if he becomes aware of
the danger and is able, by the use of ordinary care, to avoid the collision, a failure
to do so would be considered negligent.3
1 Santam Insurance Co. Limited v Gouws 1985 (2) SA 629 (A).
2 I. Isaac, G. Leveson and H.B. Klopper The Law of Collisions in South Africa , 7th Ed at p. 49.
3 Ibid.
[21] Arguing that there is no negligence attributable to the plaintiff, the plaintiff’s
counsel contended that there is no objective evidence indicating the plaintiff was
intoxicated to the degree that he could not safely operate his motorcycle. He also
argued that there is no objective evidence suggesting that the plaintiff’s lack of
experience in driving and the fact that he did not have a valid driver’s license
contributed to the collision.
[22] Plaintiff’s counsel suggested that the overall evidence indicates the plaintiff
was likely very close to or already in the intersection when the insured driver
started his right turn. Consequently, the plaintiff would not have been able to avoid
the collision when considering the principle of standard perception reaction time.4
[23] The defendant argued that the combined impact of the following factors
demonstrates the plaintiff's negligence: (a) the plaintiff did not have a valid license
or a learner’s permit, (b) the pl aintiff’s testimony that he might have been driving
at approximately 90 km/h, as well as Mr. Appolis' evidence that the plaintiff was
speeding excessively, and (c) the fact that the plaintiff consumed alcohol during
the night.
[24] The evidence that the insure d vehicle entered the intersection against a red
light was not contested, and the fact that the collision occurred close to the
intersection, in my view, demonstrates that the insured driver was negligent and
that his negligence caused the collision.
4 De Kock v Road Accident Fund (17211/2018) [2024] ZAWCHC 86 (20 March 2014) para 16.
[25] The real question is whether the collision was caused solely by the insured
driver's negligence or by the combined negligence of the insured driver and the
plaintiff.
[26] Aside from claiming that the traffic light was green for him, the plaintiff did
not provide any evidence of what happened immediately before the collision. The
plaintiff also testified that at one point he took a wrong turn, which caused him to
become separated from his group. Additionally, there is no evidence from the
plaintiff that he saw the insured vehicle before the collision, even though he drove
into its rear.
[27] The factors mentioned above indicate that the plaintiff was unaware of his
immediate surroundings before the collision. The plaintiff could not even recall
whether the street had lights, and whether they were on, even though Mr. Appolis'
evidence clearly demonstrated that the street lights were functioning at the
intersection, allowing him to see the approaching insured vehicle before it entered
the intersection.
[28] Regardless of what caused the plaintiff not to see the insured vehicle before
the collision, it is evident that he failed to maintain a proper lookout because, had
he done so, he would have seen the insured vehicle even if it was at the time when
it was directly in front of him.
[29] Since the insured vehicle was not observed before the collision, it is clear
that the plaintiff took no evasive action to avoid it. The arguments made by the
plaintiff’s counsel, claiming that the plaintiff could not have done anything to
prevent the colli sion based on general principles related to standard perception
reaction time, are not supported by any evidence presented in this Court. The case
the plaintiff relies on is different because expert evidence was pr esented, unlike
this case, where it was not.
[30] The intersection was described by Mr. Appolis as wide, with Spine Road
being a dual-carriageway with two lanes in each direction, and Park Avenue being
a dual-carriageway with one lane in each direction. From this, it is safe to infer that
the insured vehicle, before turning right, would have travelled over the two lanes in
the opposite direction to the plaintiff's travel. And this would have happened before
the collision, because Mr. Appolis testified that the insured vehicle had completed
the turn when the plaintiff drove into its rear.
[31] The plaintiff’s failure to observe the insured vehicle under the circumstances
described above was negligent, and in my opinion, that negligence causally
contributed to the collision.
[32] Determining how much each driver’s negligence contributed to the collision
is difficult because it seems both were extremely negligent. The insured driver
disobeyed a traffic light, while the plaintiff was paying no attention to what was
happening around him.
[33] In my opinion, both parties were equally responsible for the collision
because either could have avoided it. The insured driver could have avoided the
collision simply by obeying the traffic light. The plaintiff would have seen the
insured vehicle at the intersection. The po int where the collision happened has two
lanes going in the same direction. The evidence showed that the impact occurred in
the inner lane, closer to the island separating the lanes. In my view, if the plaintiff
had kept a proper lookout, he could have swerved into the other lane to avoid the
collision.
[34] Having considered all the above, I conclude that the plaintiff’s claim must
succeed, and that the defendant is liable to compensate the plaintiff for 50% of the
damages he can prove in due course.
[35] Both parties agreed that th e plaintiff is entitled to High Court costs with
costs of counsel on scale B. An order to that effect will accordingly be made.
Order
[36] As a result, the following order shall issue:
(a) The defendant is liable to compensate the plaintiff for 50% of the damages
the plaintiff can prove in due course.
(b) The defendant shall pay the plaintiff’s costs of suit on a party -and-party
scale, including costs of counsel on scale B.
_____________________________
LG NUKU
JUDGE OF THE HIGH COURT
Appearances
For plaintiff: C Bischoff
Instructed by: Lowe & Petersen, Cape Town
For defendant: C Hindley
Instructed by: State Attorney, Cape Town.