(1) REPORTABLE:
IN THE HIGH COUR T OF SOUTH AFRICA
GAUTENG D IV ISION , PRETORIA
(2) O F INTEREST TO O TH ER JUDG ES :
(3) REVISED :
(4) D a1e: 23lwj ~ ?
CASE NO.:56985/2020
In the matter between:
DLAMINI, SANEUSIWE
and
ROAD ACCIDENT FUND
Kumalo J
INTRODUCTION
Plaintiff
De fendant
-.lUD GM ENT
[1]. The Plaintiff, Ms. Sanelisiwc~ Dlo.m ii1i, issued a claim against the Defendant,
the Road Accident Fund, i.:'.!';~1il[;i • mm ::m 3lleged motor vehicle accident that
occurred on 1 January 2016 s.t •J< :18,:Jr Pr1a1<ani Street, Ladysm ith.
[2]. The Plaintiff was a passenger in the motor vehicle driven by the insured driver,
Thabane Gamede , when the incident occurred. It is alleged that the insured
driver refused to stop the motor vehicle when requested by the plaintiff. She
then opened the door and jumped out of the motor vehicle whilst it was
moving.
[3]. As a result of the said incident, the Plaintiff sustained multiple body injuries,
namely, mandible injury, right foot, right shoulder, right hand, left ankle, and
knee abrasions, swollen upper and lower lips, and facial abrasions.
[4]. Both merits and quantum issues are in dispute, and this court is required to
adjudicate both. The Defendant has not yet made an election concerning the
seriousness of the injuries, and as such, the general damages are to be
postponed sine die.
[5]. On the day of the hearing there was no appearance on behalf of the
Defendant.
[6]. The Plaintiff made an application in terms of rule 38(2) for the admission of
affidavits and reports of her experts, which application was granted. Howeve r,
it is the ruling of this court that the expert report of Dr Thobejane, the
neurosurgeon, is inadmissible because it is not accompanied by the expert
affidavit confirming its content. The content thereof cannot be considered for
this trial in the absence of the affidavit from the neurosurgeon.
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[7]. The issue for the determination of the merits is the cause of the accident, the
plaintiff's degree of negligence, if any, and whether the Defendant is liable for
compensation to be paid to the plaintiff.
[8). In terms of section 17(1) of the Road Accident Fund Act, Act 56 of 1996, the
Defendant is obliged to compensate a person for loss or damage suffered
because of a bodily injury caused by or arising from the driving of a motor
vehicle. The Defendant's liability is conditional upon the injury having resulted
from the negligence or wrongful act of the driver. This means that the Plaintiff
is required to prove such negligence or wrongful act.
[9). The Plaintiff's counsel submitted that it is crystal clear that the insured driver
was the sole cause of the collision because he failed to have any, alternatively,
sufficient due regard to the nghts of other road users, and more particularly,
the rights of the people being conveyed in his motor vehicle.
[10). The facts of this matter clearly indicate that there was no collision. The Plaintiff
jumped from a moving vehicle
[11 ). Counsel subm itted that the Plaintiff's action was justifiable as her life was in
danger and sought to rely on the case of R v Cawood 1 and Tatobaya v Road
Accident Fund2.
11 1944 GWL 50
2 2002 JDR 0795 (TKH)
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[12]. In R v Cawood, the doctrine formulated was "a man who , by another's want of
care, finds himself in a position of imminent danger, cannot be held guilty of
negligence merely because in that emergency he does not act in the best way
to avoid danger."
[13]. In the Totobabayo case, Maya J, as she then was, held the Defendant liable
100% where the Plaintiff anticipating that the truck they were riding on would
roll back and career down the incline and into a deep gorge below, made a
quick judgment call and jumped off the vehicle.
[14]. The vehicle capsized as he had anticipated, but unfortunately, it crushed his
leg. This case is distinguishable on its facts from the matter before this court.
[15]. In this case, Counsel argued that the Plaintiff repeatedly requested the insured
driver to stop the motor vehicle, but the driver failed to comply. It is alleged
that the insured driver probably had intentions to kidnap the plaintiff and
intended to commit other serious crimes like murder, rape, or human
trafficking.
[16]. However, it is not as clear as the Plaintiffs counsel suggests. As a matter of
fact, it is speculation what the insured driver's intentions were. This court is
told that a case docket was opened against the insured driver, who was
charged with the crime of kidnapping, but was not told what the outcome
thereof was .
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[17]. According to the case docket statement, she was hiking with her friend,
Bonisiwe Ndlovu. They both were offered a lift to their destination. There were
four other men in the car who , according to the Plaintiff, were dropped off at a
location in Enkuthu.
[18]. The insured driver drove back with her and, I assume, her friend Bonisiwe. I
must also accept that Bornsiwe was still in the car when the incident happened
because, according to the Plaintiff, the only people dropped off were the four
male individuals who were in the car when the insured driver offered a lift to
the Plaintiff and Bonisiwe.
[19]. I make the above assumption because the Plaintiff does not state where
Bonisiwe was when she requested the insured driver to stop or wha t
happened to her. The only other time Bornsiwe is mentioned is when the
Plaintiff has allegedly jumped from the moving vehicle. Bonisiwe came running
to her, asking if she was injured
[20]. I believe it would be helpful to restate a fundamental principle that applies in
civil matters. In Schwikkard PJ et al3, the learned authors wrote -
"In civil cases, the burden of proof is discharged as a matter of probability. The
standard is often expressed as requiring proof on a 'balance of probabilities',
but that should not be understood as requiring that the probabilities should do
no more than favour one party in preference to the other. What is required is
3 Schwikkard PJ et al 'Principles of Evidence
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that the probabilities in the case be such that, on a preponderance, it is
probable that the particular state of affairs existed."
[21). In any civil case, as in any criminal case, the onus can ordinarily be
discharged by adducing credible evidence to support the case of the party on
whom the onus rests.
[22]. The evidence presented by the P laintiff is in the form of her sworn statements
contained in both her section 19(f) and the affidavit in the case docket
uploaded on caselines.
[23]. I am enjoined to evaluate the Plaintiff's evidence holistically and not in a
piecemeal fashion. Plaintiff alleged that she jumped from the moving vehicle
because the driver of the vehicle refused to stop the car where she wanted to
alight. The conduct of the driver constituted a clear and present danger to her
of a possible kidnapping, rape, and or hum an trafficking.
[24). To bolster the above assumption, reliance is placed on the fact that a
kidnapping docket was opened. I hasten to add that the docket was opened
in January 2016. Th is court is not told wha t happened to the criminal case
opened against the driver. The matter came before the court in October
/November 2024, and surely by now there wo uld have been an outcome in
that matter.
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[25]. The content of the docket upioaoed to caselines also contained a statement
from the insured driver. It is evident from his statement that Bonisiwe was still
in the car when the Plaintiff jum:.:ied out while the vehicle was moving.
[26]. Bonisiwe was a key witness who could have clarified to the court what had
happened on that day. She, however was not called to testify. As a matter of
fact, Bonisiwe was only mentioned in the statement found in the police docket
A reading of the plaintiff's particulars of clain, created an impression that the
Plaintiff was alone with the insured dnver when the incident happened.
[27]. Based on all the above, and with the ev·dence available thus far, this Court is
not satisfied that the Plaintiff discharged the onus upon her to prove her case.
(28]. In the circumstances, the following order is made:
1. Absolution from the instance ·s granted
2. There is no order as to the costs.
Judge of the High Court, Pretoria
Delivered: This judgmen t is handed down electronically by uploading it to the electronic
file of this matter on Caselmes.
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For the plaintiff: Adv O Mulibana
Instructed by: SJ Chuene Attorneys
For the defendant: no appearance
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