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
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 2434/2023
In the matter between
THAMSANQA GOLIATH PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Goliath v Road Accident Fund (2434/2023) [2025] ZAFSHC 319 (10
October 2025)
Coram: Daniso, J
Heard: 29 and 30 April 2025. Written heads of argument delivered on 13, 20 & 27 May
2025.
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date and time for hand -
down is deemed to be 14H00 on 10 October 2025.
Summary: Liability – motor-vehicle collision – negligence – evaluation of evidence –
contradictory evidence presented – plaintiff failed to discharge the onus of proving the
defendant’s liability.
ORDER
The plaintiff’s claim is dismissed with costs.
JUDGMENT
Daniso J
[1] On 13 March 2022 the plaintiff sustained serious head injuries when he lost
control of his Opel Corsa with registration numbers and letters F[...].
[2] In the pleadings the plaintiff alleges that at the time of the accident he was
driving on Meadows Road in Bergman, Bloemfontein, when an unidentified vehicle, a
Corolla encroached on his lane of travel and collided with his motor vehicle , causing
him to lose control and collide into a nearby shack. As a result of the collision , the
plaintiff sustained head injuries. The plaintiff attributes the sole cause of the collision to
the negligent driving of the driver of the unidentified vehicle . It is in that regard that he
instituted these proceedings against the defendant seeking damages in the amount of
R5 899 000 together with interest and costs comprising of past and future medical
expenses, past and future loss of earnings and general damages.
[3] Liability is disputed on the grounds that the injuries sustained by the plaintiff
arose from a single vehicle collision caused by the plaintiff’s exclusive negligence. It is
the defendant’s case that the plaintiff was driving at an excessive speed with the result
that he lost control and collided into a shack alternatively, his negligence contributed
to the collision.
[4] By agreement between the parties, merits and quantum were separated as
provided for in Uniform rule 33 (4). The only issue that I have to adjudicate is the
defendant’s liability for the plaintiff’s damages arising from the negligence of the driver
of an unidentified vehicle and contributory negligence (if any).
[5] The following factors are common cause . Meadows Road is a dual carriage
way situated in a residential area. It consists of two lanes on each side of the road and
a speed hump . The applicable speed limit on the road is 60 kilometers per hou r, the
collision occurred on a Sunday morning around 08h00, visibility was good and the sun
was shining. The plaintiff’s vehicle left skid marks on the road surface moving from the
left to the right lane and from the right lane back to the left lane ending up at the
pavement.
[6] The plaintiff gave evidence in support of his claim . Pastor Sechaba Joseph
Thahube, Mr. Bongani Nathaniel Mashibini and constable Prince Lehlohonolo
Motejane testified for the defendant’s case.
[7] The plaintiff is a police officer. He testified that he has been employed as a
police officer since 2009. Immediately before the collision he was driving on the left
lane of Meadows Road. The road has two lanes on either side separated by a
pavement. It also has a 25 centimeters high speed hump. Upon reaching the stop
sign which was about four or five kilometers away from U -Save he observed an
unidentified vehicle from his rear mirror approaching at a high speed behind him. He
proceeded towards a speed hump where he changed lanes and dr ove on the right
lane to avoid being collided into by the unidentified vehicle . At this stage the
unidentified vehicle was about one to two kilometers away. Upon reaching the speed
hump the unidentified vehicle also changed lanes and drove on the right lane . The
plaintiff moved back to the left lane and it was then that the unidentified vehicle also
plaintiff moved back to the left lane and it was then that the unidentified vehicle also
went back to the left lane and collided into the right side of his vehicle. The impact
caused him to lose control of his vehicle and he was subsequently rendered
unconscious. He was later informed that after impact his vehicle landed next to
someone’s house. The driver or owner of the other vehicle has not been identified
because the vehicle drove away after the collision.
[8] It was his testimony that due to the speed hump , he was driving below 60
kilometers per hour. The point of impact occurred on the left lane of the road about
seven meters away from speed hump.
[9] During cross -examination he stated that , except to change lanes , there was
nothing more he could have done to avoid the collision for instance, he could not
swerve to the left or right of the road as there is a pavement between the two lanes
and on both sides of the road.
[10] It was his testimony that on 26 October 2022 , Mr. Mxolisi Schalk deposed to a
statement corroborating his version regarding the cause of the collision. Mr. Schalk
had approached and informed him that he (Mr. Schalk) saw how the collision
occurred. He signed and commissioned the statement and thereafter handed it over to
his attorneys.
When asked about the irregularity pertaining to him commissioning a statement which
is related to his personal matter, his response was that the officer on duty was busy.
Regarding his decision to hand it over to his attorneys instead of the investigati ng
officer of the case, he said the investigating officer had told him that he was going to
close the docket.
[11] The plaintiff confirmed the veracity of the statement he made to the police on
21 April 2022 , approximately a month after the collision (Exhibit ‘A13’), where he
stated the following:
‘. . . I just went over a speed bump and a car came at a high speed in the right lane. He hit the
speed bump and lost control. I was watching this car in my mirror as I heard him coming.
When he lost control he came to the left that is my side. I went to the right to try and avoid the
accident. He then came to the right hand side and hit me and I hit the pavement and lost
control . . .’
[12] When it was put to him that his testimony differs materially to the written
statement he made to the police on 21 April 2022 regarding the manner in which the
statement he made to the police on 21 April 2022 regarding the manner in which the
collision occurred , including the point of impact (Exhibit ‘A13’), he conceded the
discrepancies and submitted that his testimony was mistaken . The version that must
be accepted by the court is the version he proffered in the written statement.
[13] The plaintiff could not confirm the defendant’s version that the distance
between the speed hump and the point of impact was approximately 84 meters and
that his vehicle landed 112 meters away from the point of impact. His response was
that he does not know the distances as he did not measure them.
[14] With regard to his state of sobriety and the defendant’s version that when he
was extracted from his vehicle he reeked of alcohol and there were liquor bottles
inside his vehicle, he first responded by questioning the relevance of the question. He
then explained that he only drank alcohol the night before until 21h00. Regarding the
remainder of the defendant’s allegations, he said he had nothing to say.
[15] Pastor Thahube testified that before the collision, he was standing outside his
church, the Greater Grace Chapel situated along Meadows Road when he heard a
car’s braking sounds. When he looked up the road he saw the plaintiff’s vehicle
approaching at a high speed on the left lane . It had already went past the speed
hump. The vehicle changed lanes and moved to the right lane and back to the left
lane, lost control, hit the pavement and capsized landing on top of a shack nearby. He
called a neighbour and they went to assist the driver. Other people also came out to
assist.
[16] Under cross-examination, he disputed the plaintiff’s version that the point of
impact was seven meters away from the speed hump and averred that it occurred
about 80 to 100 meters away . He was adamant that the plaintiff was driving at a very
high speed. The fact that the plaintiff’s vehicle landed on top of Mr. Mashibini’s two-
meter-high home is an indicator that the plaintiff was driving at a high-speed including
the skid marks on the road. At the time of the accident, there was no other vehicle on
the road except the plaintiff’s vehicle.
[17] Mr. Mashibini is the owner of the shack the plaintiff collided with. He testified
[17] Mr. Mashibini is the owner of the shack the plaintiff collided with. He testified
that he was in the bedroom when he heard brakes ‘sounds followed by the sound of
impact and something falling. People called out to him to come outside. When he went
outside he saw the plaintiff’s vehicle lying on top of his devil fork and shack. He (Mr.
Mashibini) was worried that the plaintiff may die as he was seriously injured. The devil
fork had pierced the back of his neck. An ambulance was called . While they were
removing the plaintiff from his vehicle they saw sealed bottles of Savanna liquor and
an opened bottle of Castle Lite beer. The plaintiff was also smelling of alcohol . The
plaintiff’s wife and relatives arrived later, they were also drunk. After the plaintiff was
taken away by an ambulance his father-in-law took the vehicle away and told him that
the plaintiff will discuss the matter with him upon being discharged from hospital. The
police advised him to go to the small claims court regarding his damaged shack.
[18] During cross-examination it was his testimony that he did not see the collisi on
when it occurred. However, due to the fact that the plaintiff’s vehicle landed on the roof
of his shack, he concluded that the plaintiff must have been driving negligently.
[19] The last witness called by the defendant was constable Motejane. He attended
the scene of the accident shortly after it occurred. He first went to M r. Mashibini’s
home and found the plaintiff’s vehicle still under the corrugated iron sheets. The
plaintiff was inside the ambulance and due to the seriousness of his injuries he was
unable to speak to him. In the Accident Report (Exhibit ‘A2’) dictated and signed by
him it is recorded that the collision involved a single vehicle. The accompanying
sketch plan indicates that on the road surface there were tyre skid marks of a single
vehicle moving in a curving line from the left lane of the road towards the pavement.
[20] That was, in short, the evidence tendered by the respective parties’ witnesses .
In addition thereto, documentary evidence was also handed in by concurrence of the
parties as exhibits ‘A’ and ‘B’.
[21] Mr. Nongqotho , for the plaintiff, argued that the plaintiff’s version that the
collision was caused by the negligence of an unidentified vehicle is incontrovertible,
therefore, it must be accepted as the truth , whereas Pastor Thahube, who testified as
the defendant’s eye witness did not see what cause d the plaintiff to attempt to brake .
the defendant’s eye witness did not see what cause d the plaintiff to attempt to brake .
He only heard the sound of the vehicle brak ing. His evidence that after impact the
plaintiff’s vehicle landed on top of Mr. Mashibini’s shack was contradicted by Mr.
Mashibini who told the court that the plaintiff’s vehicle landed next to his shack. He
further contended that Constable Motejane’s evidence must be disregarded because
he was seated in court during the testimo ny of the other witnesses , his evidence is
thus tainted.
[22] For the defendant , Ms. Banda argued that the plaintiff’s evidence ought to be
treated with caution as he was a single witness who se testimony contradicts his
written statement. His evidence is also un corroborated as the plaintiff did not call the
witness who allegedly saw the collision occured. Inexplicably, the plaintiff also did not
provide the witness’s statement to the investigating officer who was investigating the
collision.
[23] Ms. Banda submitted that the facts of this matter and the evidence relayed by
the defendant’s witnesses support the defendant’s contention that the plaintiff was
injured as a result of driving his vehicle at a high speed with the result that he lost
control of his vehicle and collided into Mr. Mashibini’s shack. There was no other
vehicle involved in the collision, his claim must accordingly be dismissed with costs.
[24] In terms of s 17(1)(b) of the Road Accident Fund Act 56 of 1996 (the RAF Act),
the defendant’s obligation to compensate a victim for loss or damage resulting from
bodily injuries sustained in a motor vehicle collision arises from any loss or damage
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 the owner of an unidentified
motor vehicle. The onus rests squarely on the plaintiff to prove on a preponderance of
probabilities that the injuries he sustained in the collision arose from th e negligence of
the driver of an unidentified vehicle.
[25] The parties have presented mutually destructive versions regarding the
circumstances under which the plaintiff was injured. The principles governing the
evaluation of evidence of this nature are trite:
‘. . . the court must make findings on (a) the credibility of the various factual witnesses, (b)
their reliability, and (c) the probabilities. As to (a), the court's finding on the credibility of a
particular witness will depend on its im pression of the veracity of the witness. That in turn will
depend on a variety of subsidiary factors such as (i) the witness' candour and demeanour in
witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv)
external contradictions with what was pleaded or put on his behalf, or with established fact or
with his own extra curial statements or actions, (v) the probability or improbability of particular
aspects of his version, and (vi) the calibre and cogency of his p erformance compared to that
of other witnesses testifying about same incident or events. As to (b), a witness' reliability will
depend, apart from the factors mentioned under (a) (ii), (iv) and (v), on (i) the opportunities he
had to experience and observe the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of
the probability or improbability of each party's version on each of the disputed issues. In the
light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether
the party burdened with the onus of proof has succeeded in discharging it.’1
[26] It is trite that only one of the conflicting versions can be true. It was stated in
National Employers' General Insurance C o Ltd v Jagers 2 that where conflicting
versions are proffered the plaintiff can only succeed if he adduces credible evidence
and satisfy the Court on a preponderance of probabilities that his version is true and
accurate and therefore acceptable and that the other version advanced by the
defendant is therefore false or mistaken and falls to be rejected.
[27] The plaintiff has rendered an implausible and materially contradictory version
regarding the real cause of the collision. His concession in this regard is fatal to his
case. His attempt to recant his oral testim ony to fall back on his written statement
does not assist his case. Oral evidence carries greater weight than a version proffered
in a written statement as it can be tested under cross -examination to determine its
veracity. The version relayed by the plaintiff i n the statement is in any event
nonsensical. It does not make sense why he would have changed lanes from left to
the right lane where the unidentified vehicle was travelling if the purpose of changing
lanes was to avoid a collision with the unidentified vehicle. Evidence is either probable
or not.
[28] The plaintiff’s demeanour on the stand was also not convincing. He became
evasive and argumentative when his version was tested under cross-examination. In
his direct evidence he was adamant that the distance from the speed hump to the
point of impact was seven meters however when it was put to him during cross -
point of impact was seven meters however when it was put to him during cross -
examination that the distance was about 84 meters his response was that he did not
measure the distance. Similarly , when asked about the state of his sobriety and the
discovery of liquor bottles in his vehicle he questioned the relevance of the question.
[29] There is no evidence of the plaintiff’s attempt to trace the unidentified vehicle.
In terms of regulation 2(1) (b) of the RAF Act, in the case of any compensation or any
1 Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 SCA
para 5.
2 National Employers' General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440D-F.
claim for compensation involving unidentified vehicles as contemplated in s 17(1 )(b) of
the RAF Act, the Fund shall not be liable to compensate any third party unless the
third party took all reasonab le steps to establish the identity of the owner or the driver
of the motor vehicle concerned. His failure to call the witness who , according to him
saw the unidentified vehicle colliding into the plaintiff’s vehicle also puts paid to his
contention that there was another vehicle involved in the accident. It was said in Jones
v RAF3 that ‘. . . the regulation serves a legitimate government purpose, which is to
eliminate fraud and to facilitate proof, because the possibility of fraud is greater with
unidentified vehicles since it is usually difficult for the RAF to find evidence to
controvert the claimant's allegations.’4
[30] The discrepancies and improbabilities in the plaintiff’s evidence affected his
credibility. His evidence did not make sense it is clearly a fabrication. I cannot rely on
such evidence.
[31] The defendant’s witnesses impressed this Court with their concise and succinct
account of what they observed. Pastor Thahube was an independent witness. I have
found no reason why he would tell the court that he saw how the collision unfold ed
and that ther e was no other vehicle involved if that did not happen. His version was
corroborated by the observations of constable Motejane who investigated the scene
after the accident and the accident report which indicates a single vehicle collision.
[32] Mr. Mashibini also struck me as an honest witness. He admitted that he did not
see the plaintiff’s vehicle until he was called to come out after the impact. The
contradiction between his evidence and that of pastor Thahube regarding whether the
plaintiff’s vehicle landed on top or next to his shack is not material to the issue of
whether the collision was caused by an unidentified vehicle or not.
whether the collision was caused by an unidentified vehicle or not.
[33] There is no merit to the plaintiff’s contention that constable Motojane’s evidence
should be rejected simply on the basis that he was seated in court when the other
witnesses testified . Ms. Banda explained that she was not aware that constable
Motojane was pres ent in court as she had not been able to contact him on that day.
Nonetheless, a witness who has been sitting in court during the testimonies of other
3 Jones v RAF 2020 (2) SA 83 (SCA).
4 Ibid para 22.
witnesses is n ot prohibited from giving evidence . His evidence is not automatically
inadmissible. The purpose of requiring a witness to leave the court until his evidence
is required is to prevent the pollution of his testimony with the other witnesses’
testimony thereby ensuring its integrity therefore what is affected is only the weight to
be attached to that evidence taking into consideration the circumstances of the case
including the nature of constable Motojane’s evidence and whether by sitting in court
the plaintiff was prejudiced in the conduct of his case.5
[34] In casu, except to argue that constable Motojane’s evidence is tainted, not even
an attempt was made to explain on what basis the plaintiff was prejudiced by
constable Motojane’s testimony in the conduct of his case.
[35] The plaintiff has not discharged the onus resting upon him to prove on a
balance of probabilities the presence of an unidentified vehicle on the road at the time
of the collision. The accident scene speaks for itself ( res ipsa loquitur) because in the
ordinary course of events , a motor vehicle driven in a straight road, under proper
control and with due care, does not capsize unless the driver was negligent.
[36] On the accepted evidence, the plaintiff lost control of his vehicle and collided
into Mr. Mashibini’s home because he was driving at an excessive speed. A driver has
a duty to keep a proper lookout and drive his vehicle at a reasonable speed to be able
to stop his vehicle so as to avoid a collision.6
[37] Based on all these reasons above, I am satisfied that the plaintiff was the
proximate cause of the collision. The damages he sustained as a result of being
injured in this collision are thus not attributable to the defendant. Accordingly, the
defendant is not liable to compensate the plaintiff for the damages he claims.
Order
[38] I make the following order:
5 S v Ntanjana 1972 (4) SA 635 (E).
Order
[38] I make the following order:
5 S v Ntanjana 1972 (4) SA 635 (E).
6 W E Cooper Delictual Liability in Motor Law 1996 at 101 para c and 139 -140 and the authorities there
cited.
The plaintiff’s claim is dismissed with costs.
_________________
NS DANISO
JUDGE OF THE HIGH COURT
Appearances
Counsel on behalf of the plaintiff: SP Nongqotho
Instructed by: Makhubalo Attorneys
BLOEMFONTEIN
Counsel on behalf of the defendant: NP Banda
Instructed by: Office of the State Attorney
BLOEMFONTEIN