10
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1 JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
In the matter between
B D LESEME
and
ROAD ACCIDENT FUND
CASE NO: 42619/21
DATE: 05-08-2025
(1) REPORTABL E : NO.
(2) OF INTERE ST TO OTHER JUDGES: Y ES.
(3) R EV ISED .
SIGN ATURE
Plaintiff
Defendant
EX TEMPORE J U D G M E N T
DAVIS, J :
20 • [I] This matter came before me on the trial roll
yesterday, being 4 August 2025 . It is a claim by the plaintiff
against the Road Accident Fund (RAF).
[ZJ Pursuan t to an application o n benalf o f tne defendant,
the issues of merits and quantum were separated in terms
of Rule 33(4).
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[3] I n re s p e c t of t h e m e r its , t h re e it e m s of e v i d e n c e w e re
placed before the Court. The first two came by way of a
pretrial agreement , the first of which was a sketch plan
contained in the accident report. It depicted a portion of
the R30 road between Viljoenskroon and Bothaville. The
sketch purported to indicate a single lane of travel in each
direction on a tarred road, separated by a broken line.
[4] On the right-hand side of the sketch, vehicle B was
indicated and the particulars of the accident report
10 indicated that this vehicle was the one driven by the
plaintiff. On the sketch plan, this vehicle is depicted as
having ended up off the tarred road, on the gravel portion,
facing Bothaville.
[5] The vehicle depicted as vehicle A appears on the left
side of the tarred road. That is on the opposite of the
plaintiff's vehicle, but also facing Bothaville.
[6] A purported point of impact is indicated with a lack of
exactitude on the sketch plan, but close to centre line.
There are tyre marks indicated emanating from that
20 purported point of impact towards Bothaville.
[7] Th e n ext p i e c e of e v i d e n c e w a s t h e b r i e f d e s c r i pt i o n
of the accident, also contained in the report. It simply
reads as follows:
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"Driver A alleges that he was travelling on the
right Jane of the road while his vehicle collided
with another vehicle Driver B . Mentioning he
was travelling on the road on the right lane
when he was involved in an accident.
Damages occurred and injuries sustained to
Driver B."
[8] The plaintiff's application for the adducing of
evidence in terms of Rule 38(2) was refused and the
1 0 plaintiff proceeded to testify him self. This was the third
piece of evidence. The plaintiff testified in-chief that on the
day in question at approximately 8:20pm he was driving his
own car from Viljoenskroon on the R30 in the direction of
Bothaville. He also confirmed that it was a tarred road with
one lane in each direction and with yellow lines with tarred
shoulders of approximately 30 centimetres and gravel
shoulders on the sides of the road.
[9] As he was driving a long, an oncoming vehicle
overtook another vehicle and came into his lane of travel
20 and collided with him . Upon a question from counsel for the
plaintiff, Ms Van Rooyen, as to whether he had taken steps
to avoid the accident, he replied in the affirmative. He
stated that he braked and tried to swerve to his left. His
car ended up stationary after the impact partially still in his
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lane of travel. He sustained injuries on his right leg and
right ankle.
[10] The plaintiff was thereafter cross-examined by
counsel on behalf of the Road Accident Fund . I need not
traverse the totality of the probing cross-examination and
need only deal with the issues relevant to the issues of
liability.
[11] The plaintiff, when confronted with the
aforementioned sketch plan, denied the correctness thereof.
10 Initially he denied that his vehicle was Vehicle B as
indicated thereon. A bit later, he recanted and it appeared
that the scene of the accident might have been as indicated
on the sketch plan.
[12] What was important however , was the questioning
regarding the steps allegedly taken to avoid the accident.
The evidence given by the plaintiff in response was
inconsistent, to say the least. It varied from either having
remained in his lane of travel and slightly swerving to the
left to even swerving with the vehicle partially off the
20 gravel. This was aga in then retracted by him saying that he
only attempted to swerve to the left but remained in his lane
of travel and the movement of the car apparently continued
straight.
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[13] Another important factor to be mentioned regarding
the evidence given by the plaintiff in cross-examination was
to the location of the damage to his car. By way of the use
of a cell phone the interpreter indicated that the plaintiff
indicated that his car was damaged on the right front corner
and along its right-hand side.
[14] That constituted the totality of the evidence, and the
plaintiff closed his case.
[15] The defendant did not have any witnesses and could
10 lead no evidence, a common occurrence in the numerous
matters of this nature in this Division.
[ 16] Co u n s e I for the p Iain tiff a r g u e d t h at on the evidence
it must be accepted that an oncoming vehicle had veered
into the plaintiff's correct lane of travel. The plaintiff had
thereby established at least one percent negligence on the
part of the insured driver and was therefore entitled to claim
damages against the Road Accident Fund .
[ 1 7] 0 n t h e i s s u e of co n t r i b u to r y n e g I i g e n c e , t h e a r g u m e n t
on behalf of the plaintiff was that once the plaintiff has
20 established one percent negligence then, in the absence of
any evidence led by the defendant, the plaintiff should
succeed with a 100 % of its claim. Reliance for this
proposition was placed on a number of judgments .
10
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[18] The first case relied on was that of Fox v Road
Accident Fund 1. This was a judgment by a full court of this
Division, on appeal against the judgment of a single judge.
[19] The portion relied on by the plaintiff is that portion
following a statement to the effect that it is trite that the
onus rests on the plaintiff to prove the defendant's
negligence, on a balance of probabilities. The following
portion of the judgment reads as follows, (as quoted from
paragraphs 12 and 13) thereof:
"In order to avoid liability, the defendant must
adduce evidence to disprove the inference of
negligence on his part, failing which he or she
risks the possibility of being found to be liable
for damages suffered by the plaintiff. Where
the defendant had in the alternative pleaded
contributory negligence and apportionment, the
defendant would have to adduce evidence to
establish negligence on the part of the plaintiff
on a balance of probabilities."
20 [20] As authority for this, reliance was placed by the
learned Judge on Jonnson v Road Accident Fund 2 , following
1 (A548/16) [2018] ZAGPPHC 285 (26 April 201 8).
2 (13020/14) (2015] ZAGPPHC 260 (8 May 201 5).
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the old decision of Solomon and Another v Musset and
Bright Limited3.
[21] The judgment in Fo x v Road Accident Fund,
proceeded at paragraph 14 to state the position as follows.
"Section 1 (1) (a) of Apportionment of Damages Act gives a
discretion to the trial court to reduce a plaintiff's claim for
damages suffered, on a just and equitable basis and to
apportion the degree of liability. Where apportionment is to
be determined, the court is obliged to consider the evidence
10 as a whole in its assessment of the degrees of negligence
of the parties. Writers have opined that apportionment of
liability should only generally be considered where it can be
proven that the plaintiff was in a position to avoid the
collision. In this instance in order to prove contributory
negligence, it is necessary to sho w that there was a causal
connection between the collision and the conduct of the
Plaintiff, this being a deviation from the standard of
the diligence paterfamilias. In this insta nce no testimony
was adduced by the defendant."
20 [22] In this judgment nothing was said about any evidence
produced by concessions elicited from the plaintiff in cross
exam ination. I will get to this aspect later.
3 1926 AD 427.
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[23] The next ease relied on by the pi a i ntiff was that of
Lourens v Road Accident Fund 4, also in this Division, by Van
der Schyff, then still AJ. In that matter, the RAF had
pleaded that the insured driver had been contributory
negligent. The ruling was therefore that the onus rested on
the defendant to prove this aspect and that the defendant
had the duty to begin.
[24] It became apparent after the ruling that the defendant
did not have any witnesses and it was doubtful whether it
10 ever had any witnesses. On that basis and on the only
evidence before the Court being the accident report and the
section 19 affidavit of the plaintiff, Van der Schyff AJ found
that she could not find the plaintiff negligent in any manner
and that there was no apportionment to be made. Based on
the fact that there was an absence of evidence establishing
apportionment and that at least one percent negligence had
been established, the learned judge found that the plaintiff
had succeeded 100% on the merits.
[25] The next case , also by Van der Schyff, still also then
20 AJ , was Van Eeden v Road Accident Fund 5. It dealt with the
issue of liability and possible contributory negligence of a
pedestrian. In paragraph 12 of that judgment Van der
Schyff AJ found:
4 (31816/2017) (2018] ZAGPPHC 621 (23 August 2018).
5 (19294/17) (2018] ZAGPPHC 783 (14 September 2018).
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"In light of the fact that the plaintiff needs to
prove only one percent negligence on the side
of the insured driver, he has succeeded with
the claim against the Fund ."
[26] The learned judge made reference to the fo I lowing
extract from Tsotetsi v Road Accident Fund 6•
"The duty is on the defendant to adduce
evidence to the contrary or take the risk of a
judgment being given against him ."
10 [27] Reference was also made to an extract from Ntsala v
Mutual and Federal Insurance Company Limited7, which
reads as follows:
"The onus to aver and to prove contributing
measures rested on the defendant. The only
grounds of contributing negligence that may
possibly be attributed to the plaintiff was of a
possible failure to keep a lookout, although the
evidence does not support a finding of this
nature."
20 [28] I point out that the finding in the above judgment that
no evidence supported a finding of this nature, was based
6 (72217/2009) (2016) ZAGPPHC 36 (29 January 2016).
7 1996 (2) SA 184 (T) 190.
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on the plaintiff's own evidence. I return to this principle a
bit later but let me first continue with the other two cases
relied on by the plaintiff's counsel. The fourth case was
that of Mokwena v the Road Accident Fund 8, also in this
Division, a judgment by Maumela J. In that case the
defendant had admitted at the pretrial conference that the
insured driver had been negligent. A version by an
independent eyewitness was also admitted.
[29] The judgment of Maumela J then proceeded on the
10 admitted facts, which he in paragraph 5 of the judgment,
stated did not require proof. Based on that, the learned
judge found that the plaintiff had proven the liability of the
defendant.
[30] The argument before Maumela J was that the
defendant did not advance evidence to justify a court of
contributory negligence and that therefore the finding
should attribute 100% negligence to the RAF. This
argument found favour with Maumela J, after he pointed out
that there was no version on behalf of the defendant nor any
20 exculpatory evidence.
[31] The last case relied on is that of Rae v The Road
Accident Fund 9, a decision by a full court in this Division of
8 (75931/2017) (2020] ZAGPPHC 320 (3 July 2020).
9 (A114/2022) (2025] ZAGPPHC (21 May 2025).
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an appeal from a single judge. I was a member of the
bench which delivered that judgment and it is indeed correct
that in that matter the principle was reiterated that in our
law it is enough to hold the RAF liable if the plaintiff has
proven one percent of negligence on the part of the insured
driver. This general principle is, of course, subject to
findings of contributory negligence.
[32] In Rae's matter the judgment went on, after the
restatement of the abovementioned general principle, to
10 deal with the issue as to whether contributory negligence
could be found, even though not properly pleaded. That
case is however to be distinguished from the present case
in the following regard: In that matter the issue of
contributory negligence was not pleaded properly and was
consequently not an issue before the court a quo. As a
further consequence it was found also not to be a live
decision which a court of appeal could consider. The
judgment is therefore no confirmation for the argument that
if no evidence is led, 1 % automatically becomes a 100%.
20 [33] In considering the source of evidence of contributory
negligence, one need only to consider examples from the
various factual scenarios which often come before this
Court to interrogate the correctness of the plaintiff's
submission. Take for exam pie the ins ta nee where , as often
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happens in our Division where there are multiple multi-lane
highways, a plaintiff is driving in a middle lane and an
insured driver in the rig hth and Ian e starts to execute a move
to its left or merely indicates an intention to move to its left,
causing the plaintiff to swerve to its own left and collide
with either another vehicle in the left hand lane or even
leave the road and collide with barriers or trees.
[34] In that example , the insured driver might well be at
least 1% negligent, but the inappropriateness of arguing, as
10 an absolute proposition, that this means that nothing else
the plaintiff says may be ta ken into account, is i 11 u ~trated by
the following: what if the plaintiff in cross-examination
concedes that he or she was driving at 200 km/h at night
without any lights? Then surely any reasonable
determ inator of the facts or a person faced with such a
proposition, would find that the plaintiff himself was either
the biggest cause of the accident or at least a contributor
thereto, particularly where contributory negligence had been
pleaded.
20 [35] The cases that I have referred to on which the
plaintiff relied, all contained references to the onus on the
defendant to prove contributory negligence and a duty to
adduce evidence. I find however, that on a reading of those
cases the bearing of the onus does not mean that evidence
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to discharge that onus can only be produced by a witness
called by the defendant or by the evidence of the insured
driver himself. To hold that this is the position, constitutes
a too narrow view of the issue. Surely the defendant is
entitled to rely on admissible evidence elicited from the
plaintiff. Answers given or concessions made during cross
examination should also constitute evidence then adduced
"by the d efe n da nt." The i 11 u stration of the p I a i ntiff driving at
200 km/h would supports this proposition.
10 [36] I am fortified in this view in that in numerous other
instances, our courts have allowed a party to rely on
admissions or concessions elicited in cross-exam ination.
[37] In RAF v Mehlomaku/u 10, also a decision by a full
court, the finding went against the defendant on the basis
that its attempt to establish contributory negligence by
cross-examination, was insufficient. Non constat that the
court was prepared to allow the defendant rely on any such
concessions. In that case the concessions relied on were
simply insufficient.
20 [38] Th is issue was also ea nvassed by M ul I e r J, in M aroga
and Mashete v Road Accident Fund 11 , at paragraph 20 ,
where after exam ination of the issues in the pleadings, the
10 2009 (5) SA 390 (E).
11 (952/2024) (2025] ZALM PPH C 48 (18 M arch 2025).
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14 JUDGMENT
acceptance of evidence elicited in cross-examination was
also considered. The learned judge opined as follows: "It
cannot be expected of a court to simply close its eyes to
evidence proving contributory negligence ... on the part of
plaintiff".
[39] In Van der Schyff v the Road Accident Fund 12, it was
also accepted that the defendant ea n impugn the plaintiff's
evidence by way of cross-examination and that such evidence
would then constitute evidence which a court should take into
10 account.
[40] Another example hereof is the issue of contributory
negligence based on the failure to wear a seatbelt, which
featured in a number of previous instances. In Khumalo v
RAF 13, the learned acting judge considered a number of
judgments and determined (correctly, in my view) that the
issue of contributory negligence deals with liability and not
with quantum. In that matter the defendant relied on Nqozo v
Road Accident Fund 14, to argue that the evidence elicited that
the plaintiff had not worn a seatbelt, entitled the defendant to
20 an apportionment of 80/20. In the end the learned acting
judge found that the extent of the negligence could not be
determined and therefore held the defendant 100% liable.
12 (9952/2016) [2017] ZAGPPHC 966 (20 October 2017). See also Old Mutual Insurance Co
Ltd v Nomeka 1976 (3) SA 45 (A).
13 (2018/21864) [2024] ZAGPJHC 613 (2 July 2024).
14 (21866/2012) [2013] ZAGPJHC 390 (19 Novemb er 2013).
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[41] The approach confirmed however, that evidence of
liability elicited in cross-examination, constituted admissible
evidence in determining whether an apportionment should be
ordered or not.
[42] This approach accords with that set out in the well
known case of South British Insurance Company Limited v
Smit1s, which entitles a court to take into account the totality
of the evidence. The very nature of the enquiry involves an
exercise of individual judgment. The principle was restated
10 that the assessment of the degree in which the claimant was
at fault in relation to the damages caused , is a matter on
which opinions may vary, but in respect of which a court must
determine a degree of fault.
[43) Applying all this, I am of the view that while it is correct
that while a plaintiff may have established a claim in having
proven at least 1 % negligence on the part of the insured
driver, it does not mean that the narrow view should be that
even if the plaintiff makes concessions indicating his own
liability or deviation from the standards of a reasonable
20 driver, that a court would not be entitled to take that into
account in determ ining the issue of contributory negligence .
[44) The issue can also be approa ched from a different
angle. Reverting to the plaintiff's own pleadings where the
15 1962 (3) SA 826 (A ).
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plaintiff had pleaded that the defendant was the sole cause of
the collision, then once the plaintiff has in its own evidence
conceded that there might have been other causes , then the
plaintiff has not succeeded in proving its own cause of action
to the extent pleaded.
[45] The question is simply whether, on the evidence led,
whether by way of an individual or independent witness, or by
the plaintiff him - or herself, the defendant has acquitted
itself of the onus of adducing evidence that there was
10 contributory negligence on the part of the plaintiff.
[46] In the present matter I find the RAF has acquitted itself
of that onus . The determination of the percentages of
apportionment is the next question. I need not traverse all
the case law dealing w ith the various permutations as to how
contributory negligence is determined. Suffice to say that I
find the percentage dev iation from the standard of the
diligence paterfamilias to be the most a p prop ri ate in the
circumstances.
[47] In the present instance, even faced w ith a sudden
20 emergency caused by an oncom ing vehicle, there remained
a a u t y o n t n e p I a i n t I ff to ta k e s t e p s i n a v o i d a n c e of a n
accident.
[48] There may have been very little oppo rtunity for the
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17 JUDGMENT
plaintiff in the present matter to avoid the accident, but if
the plaintiff wanted to convince the Court that he had taken
such steps as his counsel has led him to testify in his
evidence in chief and where it is found that those steps
(mainly the a lleged swerving to the left) had not been taken
or where evidence in respect thereof is so unsatisfactory
that it cannot be relied on , then I find that there is at least a
10% deviation from the required standard.
(49] Accordingly, I find that the defendant is liable for 90%
10 of the plaintiff's damages.
DAVIS, J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
DATE JUDGMENT DELIVERED: 5 AUGUST 2025