IN THE HIGH COURT OF SOUTH AFRI C A
KWAZULU-NA TAL DIVISIO N, PIETERMARITZBURG
CA SE NO . 2884/2022P
In the matter between:
BONGUMUSA ZONDI APPELLANT
and
ROAD ACCIDENT FUND FIRST RESPONDENT
ORDER
1. The plaintiff succeeds on liability.
2. The defendant is held 100% liable for the damages proved or agreed.
3. The defendant is ordered to pay costs on Scale C .
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JU DG MENT
Delivered:
Mn gad i J:
[1] The plaintiff instituted an action claiming damages from the defendant due to
bodily injuries sustained in an accident.
[2] The plaintiff is Bongumusa Zondi an adult male trainee-plumber. The
defendants is the Road Accident Fund (the fund) a juristic entity established in terms
of the provisions of the Road Accident Fund Act, Act 56 of 1996 (the Act). Section
17(1) of the Act provides that the Fund is obliged to compensate any person for bodily
injury caused by or arising from the driving of a motor vehicle if the injury or death is
due to the negligence or other wrongful act of the driver or owner of the motor vehicle.
[3] The plaintiff in the particulars of claims stated that on or about 29 September
2017 and or in the vicinity of New Hanover in KwaZulu-Natal, the plaintiff was a
passenger in a motor vehicle bearing registration letters and numbers NP 6677. An
unidentified motor vehicle truck (the truck) was travelling to the opposite direction.
When it passed the plaintiffs motor vehicle a metal object came off the truck and
injured the plaintiff.
[4] The plaintiff stated that the truck driver was negligent in one or more of the
following respects, name ly, in not having properly secured the metal object he was
transporting. alternatively. it was a wrongful act of the truck driver not to properly
secure the metal object he was transporting.
[5] The plaintiff then referred to the provisions of the Road Traffic Act 93 of 1996.
Section 63(1) provides that no person shall drive a vehicle on a public road recklessly
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or negligently. Section 63(2) provides that any person who drives a vehicle in a wilful
or wanton disregard for the safety of persons or property shall be deemed to drive that
vehicle recklessly. Section 64 which provides that no person shall drive a vehicle on
a public road without reasonable consideration for any other person using the road.
[6] The plaintiff pleaded that the metal object hit the plaintiff in the left eye and it
got stuck in the eye. It completely damaged the left eye resulting in evisceration of the
left eye which resulted in the total loss of the left eye.
[7] The defendant pleaded no knowledge of the incident and put the plaintiff to the
proof of its case. The parties at the commencement of the hearing agreed to an order
separating the issue of quantum from the issue of liability. The issue of quantum to
be held in obeyance for later determination. In addition, the parties agreed that
documents in the bundles be admitted as evidence in the trial.
[8] The plaintiff lead evidence of three (3) witnesses; namely, the plaintiff;
Khulekani Jerermiah (Gabela) and Kwanele Mahlaba. The defendant closed it case
without leading any evidence. The evidence for ease of reading is not summarised in
the sequence it was given.
[9] The plaintiff testified as follows. On the day in question, he was in a kombi taxi
(taxi) from Pietermaritzburg to Greytown. He was doing a course in plumbing in a
college in Pietermaritzburg. The college closed for the end of third term holidays, and
he was travelling to his home in Greytown. He boarded the taxi in Masukwana Taxi
Rank in the Pietermaritzburg CBD. The taxi left the taxi rank full of passengers at
about 14h00. In the taxi he sat in a seat directly behind the taxi driver. It was a hot
sunny day. The taxi travelled on the main road (R33) which is tarred with lanes to both
directions between Pietermaritzburg and Greytown. When the taxi was almost
halfway, having travelled for about an hour, he had the window next to him on his right
halfway, having travelled for about an hour, he had the window next to him on his right
open. He saw a truck travelling to the opposite direction. That truck when it was next
to the taxi he heard a sound coming from that truck and it was at the time when an
object flew into the taxi through the open window from the passing truck and it hit him
on his left eye. He bent over behind the drivers' seat, holding his face over the left eye
and he bled profusely from the left eye. He felt excruciating pain from the left eye.
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Female passengers sitting next to him told the taxi driver of his injury and insisted that
he be attended to. An ambulance was summoned for him by phone. The taxi drove
on not for a long distance and it stopped. He got out of the taxi to get some fresh air,
but he remained in excruciating pain.
[1 OJ The plaintiff testified that an ambulance arrived. The ambulance staff attended
to him, and they took him by ambulance to Greytown Hospital. He arrived at the
hospital around 17h00. He was treated by being examined and he was given pain
tablets. It was decided that he be transferred to Edendale Hospital in Pietermaritzburg
for further medical treatment. He arrived at the Edendale Hospital around midnight
and he was admitted. He remained in hospital for about two months.
[11] The plaintiff testified that as part of his examination at the Hospital, he was
taken to the scan. The scan showed the foreign object still stuck inside the left eye.
He was told that the left eye was totally damaged and it could not be saved. The
doctor asked for and he gave consent for the evisceration of the left eye operation
which was done. The object stuck in his eye during the evisceration was taken out
and it was given to him. The plaintiff for the record produced the foreign object which
was in a plastic container. It was admitted as evidence and marked Exhibit 1. It is a
right circular cylinder/drum shaped. Its height is 10mm and its his radius is 5mm. Its
surface on the cylinder is rugged as if it had been stuck on something, the other side
top is smooth. The opposite side not smooth and it appears as of it is broken off. It is
brownish in colour, and one can easily mistake it for some wood , but if you hit it against
a metal then confirms that it is a metal. It is heavy for its size,(size of big bean) may
be as heavy as a 9mm live round of ammunition. The container is labelled and written
as follows: Hospital: Edendale; Name : Zondi Bongumusa , Reg No :941211 ward:
Eye Ward ; Date: 04/10/2017.
Eye Ward ; Date: 04/10/2017.
[12] The plaintiff conceded that he did not actually see the object that hit him leaving
tne truck, flying into the taxi through the window and hitting him. But it was at that time
the truck was next to the taxi when an object hit his left eye. In the taxi at the time
there was no commotion it was normal. The object did not hit or damage the taxi
anywhere. The taxi was driving normally along the road in a farm area. When the
object hit him, he was sitting straight up in his seat with the window next to him open.
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He had passengers sitting on his left. The other passengers in the taxi immediately
saw that he had been injured on the left eye and saw that he was bleeding profusely.
(13] Mr Zondi testified that the truck in question did not stop. He did not obtain its
particulars. It was white and it was carrying logs. He saw that as it was coming to
pass the taxi. Except the truck driving passed there was nothing else happening.
There was traffic driving to the same direction as the taxi. The truck was driving at a
high speed, maybe 120 or 140 kph. The photos in the admitted bundle of documents
show a tarred road with one lane to each direction. The lanes are separated a barrier
line. The road has wide lanes with no yellow lines on the sides. The road is running
WesVEast. It is gentle curving to the right for one driving toward the east. The sides
of the road are a short wide gras verge.
[14] The parties testified that he told the medical staff how he got injured but he did
not know the name of the medical staff who talked to him. He did not know whether
what is written in the medical records was written by the medical staff that talked to
him or not. He talked to them in lsiZulu. The medical records are written in English.
The incident was reported to the police at New Hanover Police station. The taxi driver
was present whe n the accident was reported to the police. The injury caused him
severe pain and trauma, and his mind was affected after the incident. He was in that
condition when he told the medical staff what happened, but he did not loose
consciousness.
[15] Kwanele Mahlaba testified as follows. He was in the same taxi as the plaintiff.
He boarded the taxi in Pietermaritzburg, and he was going to Greytown. He did not
know the plaintiff before that date. He was in the taxi sitting in a seat directly behind
the plaintiff. The window next to him was not a window that opens. The plaintiff had
the window next to him opened. He saw the plaintiff getting injured on the left eye.
the window next to him opened. He saw the plaintiff getting injured on the left eye.
He heard a burst noise from a truck which was driving passed the taxi to the opposite
direction. The truck came from a ro ad from the farms. The noise was from the wheel
of the truck. He did not know which wheel. Something came out of the truck, and it
hit the plaintiff on the left lane. The plaintiff placed his hands over the left eye and he
was bleeding. It was a metal object that got into the eye of the plaintiff. He saw that
after it was removed from the eye at the hospital. When the object hit the plaintiff the
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truck was next to the taxi. The object did not hit any part of the taxi or any person in
the taxi except the plaintiff. There was no commotion in the taxi or anything happening
and there were no people outside the taxi.
[16] After the plaintiff got injured the taxi kept driving on. An ambulance was
summoned . They stopped at Mispah not very far and waited for the ambulance. The
ambulance arrived and it took the plaintiff to the hospital. The taxi proceeded with its
journey to Greytown. The metal object that hit the plaintiff came from the truck. The
truck had two trailers loaded with logs. He did not notice its colour. It was driving
slowly as it had come from the farm. The truck although it is a big vehicle making
noise when driving, he could hear that noise came from the wheel of the truck. The
incident happened when the taxi was driving up approaching New Hanover. He did
not notice whether at the time other passengers in the taxi had opened their windows
or not.
(17] Khulekani Jeremiah Gabela (Gabela) testified as follows. He was a hospital
manager at Edendale Hospital. He was in charge of all the medical staff at the
hospital. He was in charge and in control of all the medical records at the hospital.
He was a medical doctor by profession.
[18] Gabela testified that he had the med ical records of Edendale Hospital relating
to the plaintiff. The plaintiff was transferred from Greytown Hospital to Edendale
Hospital. The first entry on the records dated 30 September 2017 states that the
patient was hit by a foreign object on the left eye whilst (what) had window open a
truck went pass carrying stones. The patient report form records that the plaintiff was
from Greytown Hospital to Edendale on 30 September 2017 was received at 23:58
arrived 03h06 and the chief complainant was an injury on the left eye, assault with
stone. The Edendale Emergency Department Clerking Sheet dated 30/09/2017 as a
present complaint at 3h59 record is that he was hit in the left eye with an unknown
present complaint at 3h59 record is that he was hit in the left eye with an unknown
object. Tne patient referral le tte r datod 29 S eptemb e r 2017 as reasons for referral
states: '22 yr old patient injured on his left eye when an unknown mov ing object that came as
a bus passed the vehicle he was on with his window open. He sustained a ruptured globe
with absent light vision and has no other medical condition'. The theatre note dated 3
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October 2017 states 'evisceration operation, metal foreign body {large thing')
evisceration-area of dome, smooth, sutures visible, evisceration for prosthetic eye.
(19] Dr Gabela confirmed that all medical records show that the plaintiff had a large
foreign body in the left eye which got into the left eye when he had his window open,
it came from a vehicle passing a taxi to the opposite direction. The plaintiff was
advised that there was no other option except an evisceration operation which he the
consented to and signed a consent form. Nobody before the foreign object was
removed could say what was the nature of the foreign object. It was then found to be
a metal foreign object. The medical records show that it was on 4 October 2017 when
an intraocular metal foreign object was removed together with the eye contents.
(20] The Road Accident Fund Act 56 of 1996, s4(1 )(b) provides that the powers and
functions of the Fund shall include the investigation and settling, subject to this Act of
claims arising from loss or damage caused by the driving of a motor vehicle whether
or not the identity of the owner or driver of or the identity of both the owner and the
driver thereof, has been established. Section 17(1) provides that the Fund shall be
obliged to compensate any person for any loss or damage which the third party has
suffered as a result of any bodily injury caused by or arising from driving of a motor
vehicle if the injury is due to the negligence or other wrongful act of the driver or owner
of the motor vehicle.
[21) The plaintiff and his witness gave evidence in a straightforward, logical and
convincing manner. The discrepancy between the evidence of the plaintiff and
Mahlaba is whether the truck was driving slowly or it was speeding. This discrepancy
does not go to the extent that one can say there was no truck at the time was driving
to the opposite direction. The discrepancy may be attributed to a fading memory,
to the opposite direction. The discrepancy may be attributed to a fading memory,
incident took place on 29 September 2017 and they testified on 17 November 2025
which is about eight (8) years after the incident. The plaintiff cannot be discredited
based on the report on the medical records wheth e r he said the truck was carrying
stones or logs since the medical records are in English and he spoke in lsizulu and it
is not known whether the recordal was done by a person who spoke to the plaintiff or
not. The evidence of the plaintiff and Mahlaba is confirmed by what happened as the
plaintiff got hit.
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[22) The evidence of the plaintiff and his witnesses is reliable, and it is credible, the
court can fairly rely on it to come to arrive at a decision. The evidence is very clear
that the plaintiff was hit on the left eye as the truck was passing next to his open
window. The object that hit him came from nowhere except through the open window ,
it came through the open window from nowhere other than from the truck. It is
immaterial whether the truck at the time was speeding or not. The plaintiff does not
allege negligent driving of a truck as the cause of his injury. He relies in the negligent
operating a truck by driving it on a public road when the truck with its fittings and
fixtures constituted a danger to other road users.
[23) The object that injured the plaintiff by its nature was not part of the load of the
truck. It is irrelevant what the load of the truck was . There is no evidence that it
detached from the load of the truck. There is a probability that it broke off from
somewhere from the truck. Res ipsa loquitur is a legal doctrine described as meaning
'the thing speaks for itself which allows a plaintiff to prove negligence through
circumstantial evidence when a lack of direct evidence makes it difficult to prove fault.
For the doctrine to apply three conditions must generally be met, namely-the incident
is a type that would not ordinarily occur without negligence, the instrument causing the
harm was under the exclusive control of the defendant, and the plaintiff did not
contribute to the incident. It provides an indirect way for a plaintiff to establish the
defendant's negligence, especially when the specific negligence act is unknown . The
doctrine created a rebuttable presumption of negligence, meaning the defendant can
still present evidence to disprove the claim. In Goliath v MEG for Health 2015 (2) SA
97 (A) at par [1 OJ the court held: 'Broadly stated, res ipsa loquitur (the thing speaks for
97 (A) at par [1 OJ the court held: 'Broadly stated, res ipsa loquitur (the thing speaks for
itself) is a convenient Latin phrase used to describe the proof of facts which are sufficient to
support an inference that a defendant was negligent and thereby to establish a prima facie
case against him. The maxim is no magic formula (Arthur v Bezuidenhout and Mieny 1962 (2)
SA 566 (A) at 573E). It is not a presumption of law, but merely a permissible inference which
the court may employ if upon all the facts it appears to be justified (Zeffert & Paizes The South
Africa/ Law of Evidence e ed at 219). It is usually invoked in circumstances when the only
known facts, relating to negligence, consist of the occurrence itself (see Groenwewald v
Conradie; Groenewald en Andere v Auto Protection Insurance Co Ltd 1965 (1) SA 184 (A) at
187F)-where the occurrence may be of such a nature as to warrant an inference of negligence.
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The maxim alters neither the incidence of the onus nor rules of pleading (Madyosi v SA Eagle
Insurance Co Ltd 1990 (3) SA 442 (A) at 445F)-it being trite that the onus resting upon a
plaintiff never shifts (Arthur v Bezuidenhout and Mieny at 573C). Nothing about its invocation
or application, I dare say, is intended to displace common sense. In the words of Lord Shaw
in Ballard v Norlhern British Railways Co 60 Sc LR 441, 'the expression need not be magnified
into a legal rule: it simply has its place in that scheme of and search for causation upon which
the mind sets itself working' (cited with approval in Naude NO v Transvaal Boot and Shoe
Manufacturing Co 1938 AD 379 and Arthur v Bezuidenhout and Mieny at 573F-G).
[24] The plaintiff was innocently in a motor vehicle which was driving on a public
road. He and the motor vehicle he was in did not in any way contribute to the cause
of the injury to the plaintiff. There is no doubt that the truck caused the metal object
to fly through the window resulting in it causing the injury to the plaintiff. The truck
driver might not have been aware of what was happening. If the metal object detached
from somewhere in the truck, it is the responsibility of the driver and/or owner operating
a motor vehicle on a public road with other road users to ensure that his motor vehicle
is in a condition that nothing detaches from it causing injury to other road users.
[25] The plaintiff is not required to prove his case beyond reasonable doubt. He is
required to prove his case on the preponderance of probabilities. The metal object
came through the window , and it hit the plaintiff. The plaintiff had no means to stop
the truck there and there, and to have it properly inspected. The truck having gone
unidentified it could no longer be found for thorough inspection. The truck was
travelling on a tarred road surface used by other traffic with no debris on it. The metal
object has no damage on it to show that the truck or other traffic had it lodged in the
object has no damage on it to show that the truck or other traffic had it lodged in the
grooves of the tyres as the trye drove on the tarred road surface. This shows that the
metal object detached from the truck and it flew in through the window , and it hit the
plaintiff. There is no explanation from the defendant. The only inference is that it
detached due to either its make or the manner it was attached by those in charge for
keeping the truck in a road worthy condition. In either case, the plaintiff succeeds to
establish fault that renders the defendant liable 100% for the damage caused to the
plaintiff. As a result, the plaintiff on a balance of probabilities has proved liability.
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[26] It is ordered as follows:
1. The plaintiff succeeds on liability.
2. The defendant is held 100% liable for the damages proved or agreed.
3. The defendant is ordered to pay costs on Scale C .
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APPEARANCES :
Case Number :
For the Plaintiff:
Instructed
For the Defendant:
Instructed by:
Heard on:
Judgment delivered on:
2884/2022P
Adv . Veren Sitaram
A. Soodyall & Associates
MORNINGSIDE
Adv Moodley
Office of the State Attorney
DURBAN
17 November 2025
05 December 2025