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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 2021/25588
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 5 November 2025
SIGNATURE
In the matter between:
OMONIWA OLUGBENGA EMMANUEL. PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGEMENT
NHARMURAVATE AJ
Introduction
[1] This is a third -party claim wherein the Plaintiff Mr Omoniwa Olugbenga
Emmanuel a Nigerian citizen seeks damages against the Road Accident Fund
for an incident that took place on the 11 th of September 2020. This matter was
allocated as a special default judgement application as it remained undefended
by the Road Accident Fund.
[2] Counsel for the Plaintiff, Mr. Erasmus, requested permiss ion to proceed
pursuant to rule 38(2) of the uniform rules of court , which the court granted to
facilitate the efficient conduct of the trial in this matter.
[3] This court was informed that this matter will only proceed on the issue of merits.
Background Facts
[4] The Plaintiff is an adult male residing in Eldorado Park who was involved in a
motor vehicle accident on September 11, 2020, at approximately 16:00.
[5] According to the affidavit, he attested that he was driving a vehicle with
registration P[...] and proceeding straight on Albert Sisulu Rd. While doing so,
another vehicle with unknown registration details was traveling behind him at
high speed. He attempted to move into the yellow lane, bu t the other vehicle
collided with the rear of his car and then left the scene.
[6] The accident then resulted in the Plaintiff sustaining injuries which resulted in
his hospitalization.
The Plaintiff’s Argument
[7] Mr. Erasmus for the Plaintiff argued that the accident occurred solely as a result
of the negligence of the i nsured driver who in this case is insured by the
Defendant. He argued that the only version which was before this court was
that of the Plaintiff and in the existence of such the Plaintiff should be awarded
100% of the damages that he has claimed against the Defendant.
[8] Mr. Erasmus, representing the Plaintiff, sub mitted that this incident constituted
a clear rear-end collision, and pursuant to established practice, the vehicle that
is struck from behind is entitled to full compensation for its claim in such
circumstances.
[9] Mr. Erasmus presented the accident report to the court, stating it provided
evidence consistent with the Plaintiff's account that the Plaintiff's vehicle was
struck from behind. He also noted that, according to the passport referenced to
the court, the Plaintiff was in the country lawfully at the time of the accident.
[10] Mr. Erasmus was subsequently questioned regarding the apparent
inconsistency between the Plaintiff’s affidavits and the account provided in the
official accident report. The Plaintiff’s version, as communicated to the officer
responsible for compiling the report, is documented within the accident report
as follows:
“vehicle A was driving from West to East on Albertina Sisulu, as he was driving he saw
a car driving recklessly and driver A swerved and lost control of his motorcycle and
collide on his own with the tarmac.”
[11] Mr. Erasmus a rgued that the version found on the accident report was
consistent with the affidavit submitted by the Plaintiff. He further contended
that, for a rear-end collision to occur, it is not necessary for the following vehicle
to make physical contact. According to him, the reckless driving of the
unidentified motor vehicle alone constituted sufficient cause for the Plaintiff’s
accident.
[12] Based on the evidence presented, the accident report reflects the Plaintiff's
version of events. The accident report is dated September 11, 2020.
Additionally, the Plaintiff reported the incident on that same date at
approximately 21:30.
Passport issue
[13] Counsel for the Plaintiff, Mr. Erasmus, opted to address the issue of the
Plaintiff's passport copy annexed, asserting that he was lawfully present in the
country at the time of the accident due to possessing a valid Nigerian passport.
It should be noted that this argument was introduced by Mr. Erasmus
independently, without prompting or inquiry from the court.
[14] The court was unable to discern the identity of the individual from the passport
images. I raised this concern and requested that a higher quality copy be
uploaded. However, I observed that the Plaintiff's passport expired on April 21,
2020. Consequently, at the time of the accident, the passport was no longer
valid. I addressed this matter with Mr. Erasmus, counsel for the plaintiff, who
confusingly argued that the Plaintiff possessed a copy of the passport during
the incident, which authorized his stay in the country. This point was not
supported with any authority be it provisions in the Immigration Act or
elsewhere.
[15] I informed Mr. Erasmus that his submissions were not correct it is not the
legality of the passport only that legalizes a foreigner stay in the country, but
permission is obtained through a visa1.
“(4) A foreigner who is not the holder of a permanent residence permit
contemplated in section 25 may only enter the Republic as contemplated in this
section if—
(a) his or her passport is valid for a prescribed period; and
(b) issued with a valid visa, as set out in this Act.
[16] When the accident occurred, the Plaintiff was not lawful in the country let alone
have a valid passport at the time.
[17] In summary, despite repeated opportunities afforded to the Plaintiff to clarify or
substantiate the Plaintiff's legal status at the relevant time, no satisfactory
evidence or documentation was produced. The absence of a valid visa or any
other lawful permit, in conjunction with an expired passport, undermined the
Plaintiff’s assertion of lawful presence. The explanations provided were
inconsistent, unsupported by statutory authority, and failed to address the core
requirement for legal authorisation to remain in the country. This lack of
credible evidence regarding immigration status was a material factor in the
court’s consideration of the Plaintiff’s case.
[18] I further raised the issue that the document presented to th e court was certified
on 9 August 2018, which predates the Plaintiff's accident. Accordingly, I
requested that copies of the relevant passports be produced before the court,
as the copy currently available is unidentifiable and was certified approximately
six years ago. I requested a specific copy because I was told the Plaintiff was
present in court, but it was never provided. Instead, a different passport
photocopy—issued on July 14, 2021, and expiring July 13, 2026 —was
submitted.
1 Section (4) ,(10) read together with (11) of the Immigration Act
[19] This raised an addition al question regarding the copy submitted at the court’s
request, which was not an original passport, but a copy certified on 8 March
2022 in KwaZulu Natal. This document was certified over three years and five
months ago. The court subsequently requested c larification, and Mr. Erasmus
responded that no specific date is required for the certification of documents; as
long as the document is authenticated, it is considered acceptable.
[20] While exceptions exist, I believe litigants should only use old certified (any
certification older then 6 months) documents in rare cases. The President has
pronounced that for government job applications; certified documents are valid
for six months. In my view, I have followed the same consideration as
pronounced. Without rel iable, up -to-date certification or corroborating
documentation linked to the Plaintiff’s identity and immigration status, the risk of
misrepresentation or administrative error increases. The court must therefore
insist on rigorous standards for documentary evidence, particularly where
issues of lawful presence and personal identification are central to the dispute.
[21] In response to these developments, I emphasised the necessity for clarity and
transparency regarding the Plaintiff’s immigration status at the material time.
The Plaintiff’s counsel was repeatedly afforded opportunities to produce
credible evidence, yet failed to do so, leaving the Plaintiff’s lawful presence in
doubt. This failure to provide convincing proof significantly impacted the court’s
ability to accept the Plaintiff’s assertions regarding his legal status.
[22] It was reported that even his current passport was lost and a copy of the
affidavit deposed before the Tshwane Metro Police was handed up where in, it
was noted that on the morning of May 14th, he woke to find his bike, containing
his passport and other belongings in its box, had been stolen. He then went to
his passport and other belongings in its box, had been stolen. He then went to
the nearby police station to report the incident. The Tshwane affidavit is dated
the 27th of May 2025. It gives the explanation of the lost passport which had the
13th of July 2026 expiry date.
[23] At the time of the accident, the Plaintiff did not possess any document
authorizing his stay in the country. The court was not provided with any
explanation or evidence from the Plaintiff regarding attempts to obtain legal
status, such as a visa or other documentation, nor was any good cau se
demonstrated on his stay for the last 7 years. When this matter came before
court, he was still illegal in the country.
[24] In an effort to establish the Plaintiff's legal status within the country, Mr.
Erasmus submitted a marriage certificate, presenting it as documentation that
legalized the Applicant's stay in the country . It is important to note, however,
that the marriage certificate is handwritten and is dated in 2018, but it does not
include the Plaintiff's passport number, nor does it bear any stamp from the
Home Affairs office . The authenticity thereof is questionable . Furthermore,
possession of a marriage certificate alone does not confer legal status upon an
individual who is otherwise in the country unlawfully.
[25] The Department of Home affairs is directed to do further investigations on th e
matter as they are the relevant body to deal with such issues.
ANALYSIS OF THE MATTER
[26] In the Plaintiff's application made under rule 38(2), he requested that this court
admit the following documents into evidence in accordance with the Law of
Evidence Amended Act: the RAF1 form, the Plaintiff's affidavit, a rough sketch
of the accident scene, the Plaintiff's passport, the officer's accident repo rt, the
Plaintiff's hospital records, and collateral evidence provided by the Plaintiff's
expert witnesses. This application was granted in line with the prayers sought
on the notice of motion.
[27] Wherefore all the above -mentioned documents we re used in analyz ing the
merits of this matter . It is incumbent upon t he Plaintiff to discharge the onus
endowed on him to prove negligence on the part of the insured driver on a
balance of probabilities.
[28] In the Ninteretse unreported judgement that:
“… 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. E ven in instances 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 tender.2”
[29] It is apparent that the Plaintiff must demonstrate evidence that is persuasive on
a balance of probabilities for this honourable court to make finding in his favour
despite the matter not being defended.
[30] The court's initial concern regarding the Plaintiff’s section 19(f) affidavit pertains
to its reference to the Plaintiff operating a motor vehicle. However, upon review
of both the accident report and the affidavit sworn in December 2020, it is
evident that the Plaintiff was, in fact, operating a motorcycle nothing much turns
around that issue.
[31] The second concern this court has are the contradictions contained on the
affidavits and the accident report. The Plaintiff on his section 19(f) affidavit,
attested that he was driving a vehicle with re gistration P[...] and proceeding
straight on Albert Sisulu Rd. While doing so, another vehicle with unknown
registration details was traveling behind him at high speed. He attempted to
move into the yellow lane, but the other vehicle collided with the rear of his car
and then left the scene.
[32] However, according to the accident report , reported promptly after the incident
by the Plaintiff , he swerved, lost control of his motorcycle and subsequently
2 Ninteretse v RAF (29586/13) [2018] ZAGPPHC 493 (2 February 2018).
collided with the tarmac independently. The accident report and the affidavit
presented to this court differ substantially. When questioned by the court
regarding these discrepancies, Counsel for the Plaintiff asserted that there
were no material differences, as an impact is not necessary for a rear -end
collision to occur. In my view that argument was incorrect as the version
presented on both are different. The one alludes to a rear end of a motor
vehicle, and the other alludes to motorcycle that lost control upon seeing the
insured driver driving recklessly.
[33] Furthermore, the inconsistencies highlighted above are not trivial or peripheral;
rather, they go to the heart of the Plaintiff’s version and the core facts in
dispute. The court cannot simply overlook such contradictions, as doing so
would undermine the integrity of judicial fact -finding. It is therefore incumbent
upon the Plaintiff to provide a plausible and logical explanation for these
divergent accounts if he is to satisfy the burden of proof expected in civil
matters. Absent such clarific ation, the court is left with unresolved doubts
regarding the true sequence of events leading up to the collision.
[34] The third concern is what the Plaintiff reported in hospital. The hospital record
paints another different picture its states “ MBA side swiped by a motor vehicle
while on his motorcycle Injured L side of his body .” This version casts more
doubt that a rear end collision occurred.
[35] Upon careful consideration of the evidence presented, it is apparent that
discrepancies exist between the Plaintiff's affidavit, and the accident report
inclusive of the hospital record. These inconsistencies undermine the credibility
of the Plaintiff's account and make it challenging for the Court to accept his
version on a balance of probabilities. Furthermore, the hospital records
introduce yet another narrative, suggesting that the Plaintiff may have been
side-swiped rather than involved in a rear -end collision, which further
complicates the factual matrix before the Court.
[36] This court also identified an additi onal affidavit among the hospital records
admitted as evidence. This affidavit, deposed by the Plaintiff on December 9,
2020—approximately three months after the accident —was not presented
during the proceedings but is included in the documents labelled as hospital
records submitted for the court’s consideration. In this affidavit, the Plaintiff
provides a nother different version, stating that he was traveling on Albert ina
Sisulu Road, a dual carriageway, at the time of the incident. He was
approaching a red traffic light and observed a truck ahead moving in the same
direction, with another vehicle behind him. The Plaintiff slowed down as he
neared the traffic light and shifted to the left-hand lane to avoid both the truck in
front and the vehicle behind. As they reached the intersection the light turned
green, the vehicle behind him veered into the same left -hand lane and collided
with his vehicle before driving away from the scene.
[37] This account contradicts the accident report submitted by the Plaintiff on the
date of the incident and the affidavit dated 21 April 2021 .Notably, the Plaintiff
claims that the vehicle travelling behind him was moving at excessive speed in
his section 19(f) affidavit . In contrast, the affidavit included in the hospital
records which was attested in December 2020 contains no mention of the
insured driver speeding, nor does it refer to being rear -ended by the said
vehicle.
[38] Based on the available information, it appears that a rear -end collision did not
take place. The inconsistencies in the versions presented make it challenging
for the court to determine whether the Plaintiff was not responsible for the
accident. Although t he matter is not defended and no alternative version has
been submitted to the court, the presence of conflicting descriptions regarding
been submitted to the court, the presence of conflicting descriptions regarding
how the accident happened remains relevant to the court's assessment.
[39] These conflicting narratives highlight the neces sity for careful judicial scrutiny.
The Court is not only tasked with evaluating the credibility of each version but
also with determining whether the Plaintiff's evidence, taken as a whole, meets
the requisite standard of proof. The presence of multiple s tatements—ranging
from the plaintiff’s own affidavits to contemporaneous reports —requires the
Court to assess which, if any, can be regarded as both reliable and consistent
with the physical evidence. Without a coherent and unified account, the
Plaintiff's case is fundamentally weakened, making it difficult to establish
liability on the balance of probabilities.
[40] In light of these varying accounts, the Court must exercise caution before
making any findings of fact. It is essential to reconcile the Plaintiff's statements
with the objective evidence provided in the accident report and hospital records.
Where material differences exist, the Court should prefer the version that is
most consistent with the probabilities and the contemporaneous
documentation. Ulti mately, the Plaintiff bears the burden of proof, and unless
he can provide a satisfactory explanation for these inconsistencies, the Court is
compelled to approach his version with scepticism.
[41] None of these inconsistencies were explained before this court except for
Counsel for the Plaintiff to strongly argue that this was a r ear end collision
which the insured driver was solely to blame for.
[42] Given the above, the Court finds that the Plaintiff has failed to reconcile the
conflicting versions presented in his section 19(f)affidavit, the accident report,
and the hospital records (affidavit). These contradictions are material and go to
the heart of the dispute, casting substantial doubt on the reliability of the
Plaintiff's evidence. It is incumbent upon the Plaintiff to provide a clear and
consistent account, supported by credible documentation, in order to discharge
the burden of proof. Absent such clarity, the Court cannot confidently accept
the Plaintiff's assertions regarding the manner in which the accident occurred.
[43] The approach usually taken by the courts, when faced with two conflicting and
mutually destructive versions, was formulated in National Employers General
Insurance v Jagers3as follows:
"It seems to me, with respect, that in any civil case, as in any criminal case, the
onus can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the onus rests. In a civil case the onus is
obviously not as he avy as it is in a criminal case, but nevertheless where the
onus rests on the plaintiff as in the present case, and where there are two
mutually destructive stories, he can only succeed if he satisfies 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. In deciding whether that
evidence is true or not the Court will weigh up and test the plai ntiff's allegations
against the general probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a consideration of the probabilities of
the case and, if the balance of probabilities favours the plaintiff, th en the Court
will accept his version as being probably true. If however, the probabilities are
evenly balanced in the sense that they do not favour the plaintiff's case any
more than they do the defendant's, the plaintiff can only succeed if the Court
nevertheless believes him and is satisfied that his evidence is true and that the
defendant's version is false.”
[44] If this court were to accept the Plaintiff’s argument that the accident was
caused solely as a result of the insured driver who rear ended the Plaintiff
caused solely as a result of the insured driver who rear ended the Plaintiff
impact less. It then raises a question why was a different account reported to
the officers on the date of the incident? This version given on the accident
report is more probable simply because it was done immediately after the
accident occurred and same was reported by the Plaintiff. Rather than the
affidavit which was done eight months after the accident had occurred which
was used by Counsel in presenting his argument.
3 1984(4) SA 437 (E) at 449 D- G
[45] Then there is an affidavit sworn in December 2020 which presents unclear
details for the Plaintiff, who is relying on a rear -end collision claim. The Plaintiff
does not specify his speed but notes he slowed down when approaching a red
light. Confusion arises because he moved to the left lane to avoid a truck ahead
and another vehicle behind—raising questions about why such evasive actions
were necessary at a slow speed. It also prompts inquiry into whether he
properly checked before changing lanes.
[46] To add to the confusion, when he was already of the left -hand side a v ehicle
behind him veered to the left. If it veered to the left, why would an accident
occur because the insured drivers left will not be the same side as the Plaintiff.
It appears that the Plaintiff maneuvered his motorcycle between the truck and
another vehicle at an inopportune moment. Upon observing the red traffic
signal ahead, the Plaintiff attempted to avoid a collision by moving left without
maintaining an adequate lookout, thereby solely causing the accident.
[47] The fact that the Plaintiff’s affidavit omits key details —such as any mention of
maintaining a proper lookout —further detracts from the reliability of his version
of events. The inconsistencies are not merely peripheral but go to the core of
the plaintiff’s claim, and the lack of corroborative evidence supporting the rear -
end collision theory means that the Plaintiff has not met the threshold required
to prove his case on a balance of probabilities.
Conclusion
[48] Given these findings, the Court must conclude that the Plaintiff’s version of
events is not sufficiently supported by credible or consistent evidence. As a
result, the Court cannot accept the plaintiff’s account as more probable than
not, and the application must consequently fail.
[49] The Plaintiff has not succeeded in discharging the requisite burden of proof, nor
has he provided a coherent and plausible narrative supported by the available
documentation. The inconsistencies in the Plaintiff’s account, combin ed with
the absence of corroborative evidence, undermine the credibility of his claim
and render it unsustainable in law.
[50] I therefore make the following order:
1. The matter is dismissed with no order as to costs.
2. This judgement must be served on the Minister of Home Affairs.
_____________________________
NHARMURAVATE, AJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the Applicant: Adv Erasmus
Instructed by: De Brogolio
Date of Hearing: 11 August 2025
Date of Judgment: 5th of November 2025