IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 79211/2019
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTAB LE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
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DATE S IGNATURE
the matter between
SEMA LESIBANA PETER
and
ROAD ACCIDENT FUND
JUDGMENT
LUKHAIMANE AJ :
Introduction
Plaintiff
Defendant
1. This is an action for damages stemming from a motor vehicle collision, where
the plaintiff, 30 years of age at the time of the accident and unemployed, was
2
the driver of a motor vehicle that collided with another vehicle driven by an
identified insured driver (hereinafter referred to as the "insured driver'') on
Schoeman Street in Hatfield, Pretoria, Gauteng, somewhere in the vicinity of
Leyds and Francis Baard Streets, on 10 December 2016. He sustained injuries
as a result of the accident.
2. The court granted the application for the evidence to be adduced by way of
affidavits in terms of rule 38(2) of the Un iform Rules of Court. Rule 38(2)
provides as follows:
"The witnesses at the trial of any action shall be orally examined, but a court
may at any time, for sufficient reason, order that all or any of the evidence to
be adduced at any trial be given on affidavit or that the affidavit of any witness
to be read at the hearing, on such terms and conditions as to it may seem meet:
Provided that where it appears to the court that any other party reasonably
requires the attendance of a witness for cross-examination, and such witness
can be produced, the evidence of such witness shall not be given on affidavit."
3. The plaintiff was also present to give oral evidence if required, however this was
not necessary.
Issues
4. This matter turns on the issue of merits as well as whether the plaintiff was
guilty of contributory negligence.
Legal Framework
5. Section 17(1) of the Road Accident Fund Act1 (the RAF Act) reads:
"The fund or an agent shall-
(a) Subject to this Act, in the case of a claim for compensation under this
1 Act 56 of 1996
3
section arising from the driving of a motor vehicle where the identity if the
driver thereof has been established;
(b) Subject to any regulation 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 (the third party) for any
loss or damage which the third party has suffered as a result of any bodily
injury to himself or herself or the death of or any bodily injury to any other
person, caused by or arising from the driving of a motor vehicle by any
person at any place within the Republic if the injury or death is due to the
negligence or other wrongful act of the driver or of the owner of the motor
vehicle or of his or her employee in the performance of the employee's
duties as employee."
6. The defendant's liability is conditional upon the injury having resulted from the
negligence or wrongful act of the insured driver2. The onus rests on the plaintiff
to prove such negligence.
7. Contributory negligence on the part of the plaintiff can reduce such loss or
damage in terms of the Apportionment of Damages Act3 ('the Apportionment
Act'), which reads as follows:
"(1)(a) Where any person suffers damage which is caused partly by his own
fault and partly by the fault of any 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 regard to the degree
in which the claimant was at fault in relation to the damage .
(b) Damage shall for the reason of paragraph (a) be regarded as having been
caused by a person's fault notwithstanding the fact that another person had an
opportunity of avoiding the consequences thereof and negligently failed to do
so."
2 MP Olivier, Social Security: Core Elements, LAWSA
so."
2 MP Olivier, Social Security: Core Elements, LAWSA
3 Act 34 of 1956
4
Liability
Evidence
8. The content of the plaintiff's particulars reads as follows at paragraph 5:
5. 1 The collision was caused entirely by the negligence of the driver of the
insured vehicle, who was negligent in all, a number or one of the
following respects:
5. 1. 1 He failed to keep a proper lookout;
5.1.2 He failed to take any, alternatively sufficient, cognizance of the
presence, the actions and the visibly intended and I alternatively
probable further actions of the Plaintiff;
5.1.3 He travelled at a speed which was excessive in the circumstances;
5. 1.4 He failed to apply the brakes of the insured vehicle at all alternatively,
timeously and/or one or more of the tyres thereof was/were in a
defective and unroadworthy condition, the fact of which he was aware
alternatively both could and should, by taking reasonable care, have
made himself aware of and have avoided;
5. 1.5 He failed to avoid the collision when, by taking reasonable and proper
care (including, but not limited to, travelling more slowly, swerving) he
both could and should have done so;
5. 1. 6 He failed to maintain any, alternatively sufficient, control over the
insured vehicle;
5. 1. 7 He failed to avoid collision with the plaintiff's motor vehicle when he
both could and should have done so;
5. 1. 8 He changed lanes at a dangerous and inopportune moment."
9. The plaintiff filed a supplementary affidavit to produce further details of the
accident, paragraph 6 of which provides as follows4:
"6. 1 Shortly before reaching a BP garage on my right-hand side, along
Schoeman Street, and while I was travelling in Lane 1, my vehicle was
suddenly hit on its left-hand side by a black Renault Clio. The impact
4 Caselines 003-27
5
occurred against my vehicles left hand side mirror and fender, causing
me to loser control of my vehicle and collide with a tree on the side of
the road.
6. 2 I did not see the Renault Clio before impact. I first became aware of it
when I heard the bang on my car.
6.3 At the time of the accident, the Renault Clio was crossing into my lane
from the adjacent lane (lane 2), apparently attempting to enter the
garage.
6. 4 The driver of the Renault Clio did not indicate his intention to enter or
cross into the garage entrance or make any signal to alert me to his
intention to cross my lane of travel and to enter into the BP garage that
was ahead of us on the right side of the road"
10. The accident report, sketch plan and photographs were handed in as evidence.
Discussion
11. The defendant denied liability, in the alternative sought to reduce its liability.
12. What remains to be determined is whether, on his version, the plaintiff did not
make himself guilty of contributory negligence.
13. It is uncontroverted that the insured driver's motor vehicle suddenly left its lane
and veered towards the plaintiff's lane of travel. The insured driver's statement
about the accident was not presented before the court. The defendant did not
adduce any evidence to support its allegations that the plaintiff exhibited
contributory negligence.
14. To answer whether the plaintiff was negligent depends on whether his conduct
in the circumstances fell short of that of a reasonable person. The test for
negligence was set out in Kruger v Coetzee5, where it was stated:
5 [2021] ZAS CA 125, 1996 (2) SA 428 (A) at 430
6
"For the purposes of liability, culpa arises if -
( a) a diligens paterfamilias in the position of the defendant -
(i) would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial loss;
and
(ii) would take reasonable steps to guard such occurrence, and
(b) the defendant failed to take such steps."
15. In his supplementary affidavit, the plaintiff stated that he first became aware of
the insured driver when he heard a bang on the left-hand side of his vehicle;
meaning that he did not see the insured driver's vehicle. Further that the impact
happened against his vehicle's left hand side mirror and fender. Then he said,
the insured driver did not indicate his intention to enter or cross into the garage.
These statements cannot exist together, on his own version. Moreover, he does
not explain what prevented him from attempting to avoid the collision, in the
second scenario as presumably he saw the insured driver's vehicle, it is just
that it failed to indicate before suddenly changing lanes; as there was space for
him to maneuver his motor vehicle to the outside of the road.
16. The matter was undefended, therefore it fell to the court to determine the merits.
17. Although there were other cars, there were no witnesses. The police report
completed on 12 March 2017 was attached to the record, however, does not
advance the matter any further', except that therein, the insured driver is
recorded to have stated that he indicated his intention to turn into the BP
Garage. The plaintiff is recorded to have stated that he was travelling straight before
the entrance of the BP garage, heard a bang and bumped the tree.
18. The pictures of plaintiff's damaged vehicle do not depict the side of the vehicle
where according to one of the plaintiff's explanations, the initial impact
occurred7• The damage depicted is that of the front of the vehicle. The police
report also details the damage to the insured driver's vehicle and w ith respect
report also details the damage to the insured driver's vehicle and w ith respect
6 Caselines 003-9
7 Caselines 003-11 to 003-16
7
to the plaintiff, only states that the vehicle was a write off.
19. The plaintiff insists that these two versions are possible. The one where he first
becomes aware of the insured driver on impact to the left-hand side of his
vehicle, would surely leave the insured driver as being 100% negligent.
However, as indicated, there are no pictures depicting this impact on the
vehicle, nor are there pictures of the insured driver's vehicle. If this version is to
hold, then there cannot be any reference to the insured driver having failed to
signal his intention to change lanes because even if he had done so, the plaintiff
would not have been aware of this. The pictures attached mostly depict the
impact to the front of the vehicle, after the plaintiff had lost control of his vehicle.
20. On the version where the insured driver failed to indicate his intention to enter
or cross into the garage, the plaintiff did not explain what prevented him from
driving further to the outside of the road to avoid the impact, as there was space
for him to manoeuvre his vehicle.
21 . Considering the evidence adduced by the plaintiff, the accident report, sketch
plan and photographs placed before me and the circumstances of the collision,
it is my belief that the plaintiff has two different versions of the accident and the
photographs of the vehicle support the second version, in which case the
plaintiff should have attempted to avoid the collision. No evidence was
presented that the plaintiff tried to avoid the collision or that the road was too
busy in terms of traffic, which caused him not to attempt to avoid the collision.
By failing to apply brakes or veer to the right seeing that danger was about to
occur, there can be no doubt that he acted negligently, as his actions we re not
those of a reasonable driver.
22. Section 1 (1 )(a) of the Apportionment Act, gives the court discretion to reduce
the plaintiffs claim for damages suffered on a just and equitable basis and to
the plaintiffs claim for damages suffered on a just and equitable basis and to
apportion the degree of liability. Where apportionment is to be determined, the
courts consider the evidence as a whole in assessing the degrees of negligence
of the parties.
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23. There is sufficient evidence from the plaintiff's version, the accident report and
the sketch plan displacing the inference that the only cause of the accident was
the insured driver's negligent act. The extent of the plaintiff's contributory
negligence calls for determination, which is not a mathematical calculation. The
approach is that of carefully considering all the facts and exercising discretion.
Given these considerations, the plaintiff's conduct fell 20% short of what would
have been expected of a reasonable person in his position. As a result, the
defendant is liable to pay 80% of the plaintiffs proven damages.
ORDER
24. Consequently, the following order is granted:
23.1 The defendant is ordered to pay 80% of plaintiffs proven damages .
23.2 The issues for loss of earnings and general damages are postponed sine
die.
23.3 In relation to costs, the plaintiff has been successful on the merits, and
is therefore entitled thereto.
MA LUKHAIMANE
ACTING JUDGE OF THE HIGH COURT
Date of hearing:
Date of judgment:
Appearances:
Applicant's Attorney:
Applicant's Counsel:
Respondent's Attorney:
9
8 September 2025
15 October 2025
Adams & Adams Attorneys
Adv Lizelle Haskins
State Attorney