SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2018-34184
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 17/11/2025
MOKOSE SNI
In the matter between:
SUNNYBOY MATSHEREMANE Applicant
and
THE ROAD ACCIDENT FUND Respondent
JUDGMENT
MOKOSE J
[1] This matter came before the court on the trial default judgment roll. This is an
action against the Road Accident Fund (“RAF”) for compensation of damages
sustained by Mr Matsheremane as a result of a motor vehicle accident which
occurred on 27 July 2017 . The State Attorney appeared in court on the morning
although the defendant’s defence had been struck out.
[2] Other than the issues of merits and quantum, which had been placed before
the court for purposes of obtaining default judgment , a further issue that arose was
the position of the defendant where its defence had been struck out and the
participation of the defendant in the proceedings.
[3] A cursory look at the file indicates that an order was granted on 11 October
2022 on application before Khumalo J on the unopposed motion roll where an order
in the following terms was granted:
“1. Respondent’s defence in the main action is struck off for non -compliance with
Court Order dated 20 January 2022.
2. The costs of the application to be paid by the Respondent.”
[4] The matter was previously on the roll of the unopposed motion court before
Fourie J wherein an order had been granted , inter alia, that the respondent
(Respondent in the present matter) complies with a Rule 21(4) Notice in terms of the
Uniform Rules of Court and to file a reply within 10 days of service of the order. This
order was not complied with.
[5] The consequences of a defendant’s plea being struck out means that there is
no defence before the court in which the defendant answers to the plaintiff’s cause of
action. It is for this reason that t he plaintiff was a uthorised to approach this court to
obtain judgment by default.
[6] However, the plaintiff in the matter sought to have any further participation by
the defendant precluded . This is after Counsel for the respondent arrived and
sought to participate in the proceedings. Counsel for the applicant relied on old
authorities that once a defence had been struck out, a defendant “….. shall be
placed in the same position as if he had not defended.”1
[7] Twala J in the matter of Stevens and Another v RAF 2 held a different view to
that expressed above and held as follows at [11]: “…..the striking out of the defence
of the defendant does not in itself bar the defendant from participating in these
proceedings. The defendant is entitled to participate in these proceedings, but his
participation is restricted in the sense that it cannot raise the defence that has been
participation is restricted in the sense that it cannot raise the defence that has been
1 Langley v William 1907 TH 197, Leggat and Others v Forrester 1925 WLD 36
22 (26017/2016) [2022] ZAGPJHC 864 (31 October 2022)
struck out by an order of court. It is therefore not correct to say the defendant was
not entitled to cross -examine the plaintiffs after giving evidence, furthermore, the
cross-examination was on the evidence tendered by the plaintiffs and the defendant
did not attempt to introduce its own case during the cross-examination.”
[8] In respect of the conflicting views pertaining to the striking out of a
defendant’s defence, the point can be clarified by taking note of the fact that the “old
authorities” in the matter referred to above all pre -date the Constitution. Section 34
of the Constitution guarantees “everyone….the right to have a dispute that can be
resolved by the application of the law decided in a fair hearing before a court.” It
follows that any application of such regulation should be interpreted in a manner
which least interferes with or limits the exercise of the substantive right of access to
courts.3
[9] It is also trite that the striking of a defence is a drastic measure. It precludes a
defendant from advancing legal defences raised as special pleas and from placing
countervailing evidence to that of the plaintiff before the court which evidence may
be important for the determination of the matter by the court. Accordingly, the
participation of the defendant’s counsel was allowed in the proceedings but in
respect of the issues of law and not its defence which had been struck out.
[10] On 10 July 2024 the plaintiff served a Notice in terms of Rule 28 wherein an
intention was noted by the plaintiff to amend the particulars of claim to include further
injuries sustained by the plaintiff in the accident and an increase the total damages in
the sum of R10 520 000,00 made up as follows:
1. Non-emergency medical treatment: R20 000,00
2. Past loss of earnings: R1 000 000,00
3. Future loss of Earnings: R6 000 000,00
4. General Damages: R3 500 000,00
The particulars of claim were amended. No opposition to the application in terms of
The particulars of claim were amended. No opposition to the application in terms of
Rule 28 was filed by the defendant.
33 Unreported case T obo P v RAF (9117/2019) dated 18 April 2024
[11] The court needs to determine the consequences of substantial amendments
to the particulars of claim where the defendant’s defence has been struck out. The
question to asked is whether an amendment to the plaintiff’s particulars of claim after
a defence has been struck out “open the door to a new plea”.
[12] In general, the delivery of a substantial amendment to a plaintiff’s particulars
of claim, even if only in respect of the quantum, has the effect of “re -opening” the
pleadings. This has the result that litis contestation falls away. In the case of Olivier
v MEC for Health, Western Cape4 the court held as follows:
“When due consideration is had to the amended particulars of claim , the
amendments are substantial and material. There are new aspects that in my view
would require some consideration. It may be so that this increase in quantum did not
alter the cause of action, the identity of the parties and the scope of the issues in
dispute……Notwithstanding, the scope of damages has been increased significantly,
and it would without doubt require a pleading.”
I respectfully align myself with this view.
[13] In the Olivier case (supra) the amount of damages had increased from
R6 105 000,00 to R7 155 000,00 and were found by the court to have been a
substantial amendment which would result in the pleadings being “re-opened”. In
the matter in casu the plaintiff had pleaded that the total damages amounted to the
sum of R 2 170 000,00 and the amendment was for the sum of R 10 520 000,00 an
increase in the amount of R8 350 000,00.
[14] A pertinent question is whether the “re -opening of the pleadings” would also
apply where the defendant’s defence had been struck out. In the matter of Natal
Joint Municipal Pension Fund v Endumeni Munici pality5 the original concept of litis
contestation was explained with reference to Roman Law. In modern practice it is
synonymous with the close of pleadings.
synonymous with the close of pleadings.
[15] A defence which would have been struck out by the court would have been a
response to the plaintiff’s pre-amendment case and to the quantum which the plaintiff
4 2023 (2) SA 551 (WCC) at para 21
5 2012 (4) SA 593 (SCA) ata paras 13 and 15
would have claimed. Once that had been “frozen” by the close of pleadings and the
plaintiff seeks to “unfreeze” its position, there can be no objection to allow the
defendant to plead to this “re-opened” case. Rule 28(8) allows any party affected by
an amendment to make a consequential adjustment to the documents filed.
[16] I am therefore of the view that the plaintiff cannot argue that the documents
which had been filed by the defendant had been struck out an d that it would
accordingly not be allowed to file a plea in respect of the amendment. This would
place an undue limitation on the defendant’s right in terms of Section 34 of the
Constitution. Furthermore, a refusal to allow the defendant to plead to the “re -
opened” claim would offend against a basic premise of our law being the principle of
audi alterem partem. To refuse the defendant the right to plead to the “re -opened”
claim would be manifestly unfair and contrary to the spirit of the Constitution .
However, the court should not allow the defendant in pleading to the “re -opened
claim” to delve into the issues of the merits or its previously struck out special pleas if
any.
[17] I am satisfied that the notice in terms of Rule 28 was properly served on the
respondent who opted not to oppose the application.
[18] The brief facts of the matter are that the applicant instituted a claim against
the respondent for damages sustained in a motor vehicle accident on 27 July 2017
where he was the driver. According to the Affidavit in terms of Section 19(f) of
applicant he was driving a motor vehicle bearing registration number J[...] 2[...] N[...]
and was travelling from south to north on Kgosi Mampuru Street. He approached a
traffic light at the intersection of Johannes Ramogwase Street, which was green,
giving him the right to proceed. As he proceeded through this intersection, a motor
vehicle bearing registration numbers Z[...] 7[...] G[...] driven by one Andries Beukes ,
vehicle bearing registration numbers Z[...] 7[...] G[...] driven by one Andries Beukes ,
travelling at high speed, proceeded through the traffic light, resulting in a collision
with his motor vehicle.
[19] No witnesses were called to give evidence of the occurrence of the accident,
so the court took note of the description of the accident from the accident report filed
therein as also the Section 19(f) affidavit. It is noted from the accident report that the
vehicles had already been removed from the scene. Therefore, there is no sketch
plan was available. However, the brief description of the accident on the report by
the insured driver (Vehicle A) alleges that the driver of vehicle B (the plaintiff) skipped
a red robot and was driving at high speed. The driver of vehicle B alleges that the
insured driver failed to stop where the robot was red and against him.
[20] There are two mutually destructive versions of the accident. Furthermore, the
plaintiff describes the accident to the clinical psychologist, and the details of the
accident are reported as follows:
“He was driving own car coming from his place (where he was renting a single room
with his spous e), Mamelodi, going to work, Rustenburg, around 04h00. The robot
was amber on his side at a four-way intersection road and he proceeded to pass but
another car approach ing from the left side beat the robot and struck him in the
middle of the intersection. …..”
[21] On the one hand we have the Section 19(f) affidavit and the Accident Report
in which the plaintiff blames the failure to stop on the part of the insured driver for the
accident. Then in his description to the clinical psychologist of the details of the
accident, the plaintiff makes reference to a robot which was amber. There is
therefore no clear evidence of how the accident occurred. The State Attorney, Mr
Perumal submitted that an apportionment should be made of the liability however, he
did not suggest the apportionment to be made by the court. No submissions were
made by the plaintiff in reply on whether the court should apportion the damages.
[22] It is trite that where contributory negligence and apportionment of damages
are pleaded, the defendant would have to adduce evidence to establish negligence
on the part of the plaintiff on a balance of probabilities. The evidence can only be
discharged by adducing credible evidence to support the case of the party on whom
discharged by adducing credible evidence to support the case of the party on whom
the onus rests with respect to their respective claims.
[23] This court is bound to determine the liability on the part of the defendant. The
essential elements to det ermine liability are: (i) bodily injuries sustained by the
plaintiff; (ii) cause d by or arising from the driving of a motor vehicle by another
person; and (iii) the bodily injury is due to the negligence or wrongful act of the driver
of the insured vehicle. The onus to establish the existence of these elements lies
squarely in the court of the plaintiff. Failure to discharge the onus in respect of any
of these elements implies that the defendant (the RAF) is not obliged to compensate
the plaintiff.
[24] I note that there are two conflicting versions of the details of the accident. No
sketch plan was placed before the court; the allegations by the plaintiff and the
insured driver are mutually destructive ; the Section 19(f) affidavit does not accord
with the details given to the clinical psychologist on the details of the accident.
[25] The court in the matter of Ninteretse v RAF6 Raulinga J held the following:
“…the plaintiff bears the onus to prove on a balance of probabilities that the insured
driver was negligent and that the negligence was the cause of the collision from
which he sustained the bodily injuries. There is no onus on the defendant to prove
anything. Even in the instance where the defendant has not tendered evidence to
rebut the evidentiary burden of the prima facie case presented by the plaintiff in this
case, the plaintiff may not succeed with his claim depending on the nature and
weight of the evidence so tendered.”
I respectfully align myself with this sentiment.
[26] It is concerning in this matter that we have two mutually destructive versions
of the accident, both of which were made by the plaintiff in the matter . There is no
credible evidence that the insured driver was the cause of the accident . At the end
of the trial, the plaintiff has failed to produce sufficient evidence upon which a
reasonable court may grant judgment in favour of the plaintiff . Alternatively, the
plaintiff has not produced sufficient evidence to establish a prima facie case.
Accordingly, the court is bound to grant absolution from the instance as no evidence
has been tendered by the plaintiff of the collision.
[27] Accordingly, the following order is granted:
(i) The Defendant is absolved from the instance;
(ii) No order is made as to costs.
(i) The Defendant is absolved from the instance;
(ii) No order is made as to costs.
6 (29586/2013) [2018] ZAGPPHC 493 (dated 2 February 2018)
SNI MOKOSE J
Judge of the High Court of South Africa
Gauteng Division, Pretoria
For the Plaintiff: Ms BM Tsabedze
On instructions of: Marisana Mashedi Inc
For the Defendant: Adv J Perumal
On instructions of: The State Attorney
Date of Judgement: 17 November 2025