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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA

CASE NUMBER: 2192/2023

In the matter between:

REGGIE WILLEM BEZUIDENHOUT PLAINTIFF
And

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT,
NKELE AJ:


INTRODUCTION

[1] This is a claim for damages arising out of a motor vehicle accident that
occurred on 28 August 2019, along the R330 road, running between Hankey
and Humansdorp. Plaintiff issued summons against the defendant for the
recovery of damages suf fered as a consequence of the injuries sustained in
that accident. The defendant has entered an appearance to defend and filed
both a special plea as well as the plea over.

[2] The matter was set down for trial on 27 August 2025, and it proceeded on 28
and 29 August 2025. On 29 August 2025, the parties were ordered and
directed to file written submissions, 30 days after receipt of the transcribed
record. Plaintiff’s written submissions were filed on 6 November 2025, and, to
date, the defendant has failed to provide its written submissions.

ISSUES FOR DETERMINATION
[3] At the outset, the parties applied for separation of the issues in terms of Rule
33(4) of the Uniform Rules of Court, and I accordingly granted the separation.
The matter therefore proceeded to trial only on the question of liability.

[4] A brief overview of the relevant legal principles is set out below.

LEGAL FRAMEWORK

[5] In terms of section 17(1) of the Road Accident Fund Act (“the Act”)1, the
defendant is obliged to compensate a person for loss or damage suffered
because of a bodily injury caused b y or arising from the driving of a motor
vehicle. The defendant’s liability upon the injury having resulted from the
negligence or wrongful act of the driver 2. That necessarily entails that a
plaintiff has to prove negligence.

[6] It is trite that such loss or damage can be reduced by the degree of any
contributory negligence on the part of the accident victim. That is made clear
by the provisions of section 1 of the Apportionment of Damages Act 3, which
provides that:
“(1)(a) Where any person suffers da mage which is caused partly by his own
fault and partly by the fault of any other person, a claim in respect of that
damage shall not be defeated by reason of the fault of the claimant but the
damages recoverable in respect thereof shall be reduced by the court to such
an extent as the court may deem just and equitable having regard to the
degree in which the claimant was a t fault in relation to the damage4.
(b) Damages shall, for the purpose of paragraph (a), be regarded as
having been caused by a person’s fault notwithstanding the fact that
another person had an opportunity of avoiding the consequences thereof
and negligently failed to do so”.

1 Act 56 0f 1996, section 17(1)
2 MP Olivier, ‘Social Security: Core Elements’ , LAWSA Vol 13(3) 2nd July 2013 at paragraph 163
3 Act 34 of 1956, section 1
4 Act 34 of 1956, section 1(a)

[7] The implication of section 1(a) of Act 34 of 1956 is that the court should
exercise its discretion in determining the extent of the apportionment. That is,
if the court holds that there is some fault attributable to the plaintiff5.
[8] The legal principles ta bulated above constitute an elementary framework for
the assessment of the facts in the present matter. I proceed to deal with the
evidence during trial proceedings.

PLAINTIFF’S EVIDENCE
[9] Plaintiff testified on his own behalf. He testified that on 28 A ugust 2019 he
was driving a motor vehicle with registration letters and numbers, H[...], a
Toyota Land Cruiser, between Hankey and Humansdorp, along the R330
road, when he collided with a motor vehicle with registration letters and
numbers J[...], (“the insured vehicle”), driven at the time by one Marid Loesen
(“the insured driver”). He stated that he was from Hankey heading towards the
direction of Jeffrey’s Bay, and it was about 17h15 in the early evening. He was
together with his assistant, Mr Ke nan Swartz, at the time, and he was seated
next to him. The road at that section was a two -lane way, composed of one
lane for each side of the road.

[10] He further testified that while still enroute from Hankey, he observed pigs that
were crossing the r oad from the left -hand side, and immediately he lowered
the speed of his vehicle so that the pigs could cross completely. While he was
still driving slowly, there came another pig, also from the left -hand side, and

5 Nontsele v Road Accident Fund (474/2022) [2023] ZAEMHC 28(2 May 2023) para 29

he tried to avoid colliding with it by sw erving to the right, but he drove over it.
When he collided with the pig, the wheels of his vehicle had already crossed
the white middle traffic line. After colliding with the pig, he then returned to his
correct lane, that is, on the left -hand side, and continued to drive for about 20
metres when he observed a white vehicle coming from the opposite direction.
At the time, it was being driven on its lane. Upon further observation, he
noticed that it was swerving towards his lane of travel and eventually it was in
his lane. That prompted him to move his vehicle further to the left.
Immediately thereafter the bakkie collided with his motor vehicle. He further
stated that the impact of the collision caused his vehicle to move such that its
wheels on the left -hand side were on the gravel part or sidewalk, while those
on the right-hand side were on the tar-marked part.

[11] After the collision, the plaintiff testified that he took out his phone to report the
accident. While still on the phone, he was approach ed by the insured driver
who said what was he doing. He did not answer, and he walked away.
Thereafter, he alighted from his vehicle and walked in the direction from which
the insured vehicle was coming from to a point where the brake marks
started. He the n measured the distance from where the brake marks started
to the point of impact and found that the distance was about 60 paces.

[12] The plaintiff’s testimony relating to photographs is to the effect that the photo
at page 1 of the photo album depicts the point of landing of his vehicle after
impact and it clearly shows the brake marks caused by the insured vehicle

that moved from its lane of travel across the white line to encroach upon the
lane of travel traffic coming from the opposite direct ion. That photograph
shows clearly that the insured vehicle crossed the white middle line, and the
point of impact is shown to be over the centre line. The photos on pages 5,6
and 7 show the damaged Land Cruiser from the front right wheel, the right
fender, and the right -hand side door. Photos numbered 5, 6, 7, and at pages
10, 11 and12 of the album, depict the brake marks left by the insured vehicle
on the tar mac before impact. His further testimony was that the damage to
his vehicle was on the right -hand side, which clearly shows that it is the
insured vehicle that came to hit his vehicle. There is no damage to the front of
his vehicle. The damage is on the right-hand side, starting from the wheel, the
fender, and the door on the right -hand side. The same applies to the insured
vehicle, as depicted in the photographs, the damage is more on the right-hand
side, starting from the right bumper to the fender, and, according to him, it
confirms that the insured vehicle was hit by the Land Cruiser on its lane.

[13] During cross-examination, the plaintiff stuck to his guns and was steadfast in
his testimony as to how the accident occurred. Nothing new came out of his
testimony when he was under cross -examination. He strongly disputed that
he was the cause of the accident and that he drove on the lane of travel for
the traffic coming from the opposite direction. He further denied that he
swerved into the lane of the insured driver and thereby caused the collision.

[14] In support of his testimony, the plaintiff ca lled Keenan Christopher Swartz to
testify in support of his version of events. In his testimony, Mr. Swartz
confirmed that he was a passenger in an orange Toyota Land Cruiser driven
by the plaintiff, and they were on their way from Hankey to Jeffrey’s Bay when
the accident occurred. He described how the accident occurred when he
stated that while they were still travelling, their vehicle drove over a pig, and
thereafter they became involved in an accident. After the collision, there came
a white bakkie from the opposite direction, into their lane of travel, being
driven fast, and it collided with their vehicle.

[15] Under cross-examination, he testified that their vehicle first slowed down to
avoid colliding with a group of pigs, which they noticed when the y were at
about 5 to 10 metres away. Thereafter, they collided with another pig. At the
time, according to him, they were travelling at a speed of about 70 to 80
kilometres an hour. He disputed that their vehicle caused an obstruction to the
insured vehicle. He testified that the plaintiff swerved to the right -hand side to
avoid collision with the pigs and thereafter came back to his lane. He
therefore disputed that the plaintiff was the cause of the collision. The collision
occurred a while after the Land Cruiser had returned to its lane of travel.

DEFENDANT’S CASE
[16] The defendant called Mr Mario Loesen as its first and only witness. He is
employed as an investigating officer with the South African Police Service,
stationed at Hankey Police Station. On 28 August 2019, he was driving a

white Nissan bakkie with registration letters and numbers: J[...], from
Humansdorp along the R330 road. When he was about 120 metres away
from the Weston T-junction at Weston, Hankey, he got involved in an accident.
While he was still driving, he saw a pig coming out of the bush onto the t ar-
marked road. He stated that there is a bend where the pig was entering the
road. At that moment, there came an Orange Toyota Land Cruiser from the
opposite direction, and it swerved after it collided with a pig on its lane.
Thereafter, the insured drive r testified that the Land Cruiser attempted to
return to its lane, and the accident occurred on the middle line. Before the
accident happened, the insured driver stated that he heavily applied the
brakes in an endeavour to avoid a head-on collision with the Land Cruiser.

[17] After the collision, he stated that his vehicle came to a standstill. The cruiser
ended up with its wheels on the right hand -side on the tar -marked road while
those on the left-hand side were on the gravel part of the road, and it sto pped
slightly diagonal from the insured vehicle. As a result of the impact, the right -
hand door of the insured vehicle got stuck, and he was assisted by people
from the neighbourhood to get out of the vehicle. In his testimony, he
confirmed that the skid m arks that appear from the photograph on page 1 of
the photo album were made by the insured vehicle, that is, the Nissan Bakkie
he was driving, and that they started on his lane, and crossed over the middle
line. He explained why he started to apply the bra kes, and he said it was
because he could see that the Land Cruiser was swerving to his lane of travel
to avoid colliding with the pigs, and it ended up partly in his lane. He
confirmed that the photo on page 2 of the album correctly depicts that he

veered over the white middle line and explained that this happened when he
was trying to avoid a head -on collision. He further stated that his vehicle was
never fully on the lane of the oncoming traffic.

[18] When it was put to him that the brake marks are conti nuous and that they
measure about 60 paces approximately, he agreed that the brake marks are
continuous, but disputed the distance of the skid marks, although that was not
challenged by defendant’s counsel during plaintiff’s testimony. He further
disputed that he was travelling at a high speed immediately before the
collision occurred, and he explained that the reason why he applied the
brakes was that the Land Cruiser was approaching him head -on, hence he
applied the brakes in an endeavour to avoid it, and at one point, all four
wheels were on his lane. In conclusion, he disputed that he was the one who
caused the collision, he could not have done that, as the Land Cruiser was a
big vehicle. According to him, it is the plaintiff’s vehicle that drove into his lane
of travel, and all he was doing was to avoid a head-on collision.

EVALUATION OF EVIDENCE
[19] It is indisputable that in this matter, as in all civil matters, the plaintiff bears the
onus to prove the allegations of negligence against the defendan t’s insured
driver. This is the case because the defendant has denied the allegation of
negligence and has gone to the extent of pleading that the plaintiff’s
negligence is the cause of the accident, alternatively, that it contributed to its

occurrence. Th erefore, the onus lies with him 6. The principle regarding the
onus to prove has been restated repeatedly. It is trite that our law proceeds
from the point of view that a litigant requesting a remedy has to prove that he
is entitled to it 7. In Schwikkard et al the authors made the following
observation regarding this point:
“In civil cases, the burden of proof is discharged as a matter of
probability. The standard is often 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
another. What is required is that the probabilities in the case be such
that, on a preponderance, it is probable that the particular state of
affairs existed.”8

[20] From the evidence presented by the parties during trial, there is clearly a
divergence of opinion as to who was responsible for the collision. Now the
task at hand is to evaluate the evidence and make a finding as to which
version is more probable than the other.

[21] As already stated, plaintiff presented his own evidence about how the
accident occurred, and his evidence was also corroborated, in material
respects, by his witness, Mr Keenan Christopher Swartz, who was his
assistant and a passenger at the time of the accident. The plaintiff, as a

6 Madolo v Road Accident Fund (1199/2017) [2023] ZAECMHC 63 (23 May 2023) para 16
7 CWH Schmidt and H Rademeyer Law of Evidence LexisNexis para 2 2 1 1 page 2-10
8 Schwikkard et al: Principles of Evidence Juta 4th Ed, 2016, page 628

witness, was credible and made a consistent and probable account of the
events regarding how the accident occurred. Even under cross -examination,
there were no obvious contradictions. Regarding rel iability, no justified
criticism could be made against him. His evidence was supported, in all
material respects, by that of Mr Keenan Swartz, especially regarding what
happened before the collision, how the insured vehicle came to collide with
their Land Cruiser, the damage to it, as well as the point of landing after
impact.

[22] Both the plaintiff and his witness corroborated each other that, before the
collision, they were disturbed by pigs that were crossing the road from left to
right. The plaintiff had to slow down the Land Cruiser to avoid colliding with
them. After that, a lonely pig crossed the road, also from left to right, and the
Land Cruiser had to swerve to the right and crossed the white middle lane,
and in the process drove over the pig. In the process, the Land Cruiser
crossed the white middle line, and thereafter it returned to its correct lane.
They then drove for about 20 metres when they saw a white bakkie coming
out of a bend, crossed the middle line, and came to collide with their vehicle.

[23] Counter to that, the insured driver testified that the Land Cruiser, to avoid
colliding with the pig, swerved onto his lane of travel. He had to brake heavily
to evade a head -on collision and had even decided to go around it, on the
right-hand side if it did not fully return to its correct lane. In this regard, the
plaintiff’s version of events, that is, relating to how the accident happened, is

credible and on a balance of probabilities it is believable. This is for the
following reasons. First , the long brake marks of approximately 60 paces
clearly demonstrate that the insured driver was speeding, and that is
corroborated by the insured driver's testimony that he had to brake heavily to
avoid a head-on collision. The long skid marks lead me to only one conclusion
that the insured driver was driving at an excessive speed at the time, hence
his inability to control the insured vehicle. He was therefore negligent. In
addition, thereto, those brake marks are continuous, in a straight line, which
indicates that no attempt was made to avoid the plaintiff’s vehicle, as the
insured driver would have the court believe.

[24] Secondly, the documentary evidence, in the form of photographs, remains
unassailable and the insured driver conceded that the brake marks were
continuous, that the point of impact is beyond the middle white line, on the
side of the oncoming traffic and he could not explain why this is so if at all the
other driver was to blame for the accident, especially in the light of his version
that the Land Cruiser had traversed his path of travel and he heavily applied
brakes to evade a head collision. His version is improbable to be true in this
regard. What the objective facts and evidence presented at the trial show is
that the insured vehicle crossed over the white middle line and collided with
the plaintiff’s vehicle on the left -hand side, that is, on its correct lane of travel.
That is clear from the fact that the point of impact, which is not in issue, is on
the plaintiff’s lane of travel.

[25] Thirdly, the damage to the plaintiff’s vehicle clearly indicates that the vehicle
was hit on the right front side. In this instance, the front right tyre, right front
fender, and right-hand door were damaged. The location of the damage to the
plaintiff’s vehicle is clear evidence of the fact that it was hit or collided with by
the insured vehicle. That is confirmed by the damage in the Insured vehicle,
which is mainly on the front right -hand side head lamp. Moreover, the position
of the Land Cruiser a fter the impact, the diagonal position, to me, indicates
that it was hit more on the right -front part by the insured vehicle that was
progressively protruding and encroaching on its path of travel. I am therefore
convinced, by the totality of evidence pres ented during the trial, that indeed
the plaintiff has proved his case on a balance of probabilities. The insured
driver was clearly negligent in the factual circumstances of this case. His
evidence that he did everything he could to avoid the collision is improbable to
be true and is not borne out by facts and evidence brought to the court’s
attention.

[26] The fact that the collision occurred on the incorrect side of the road may, in
certain circumstances, constitute evidence of prima facie negligence on the
part of the driver who travelled on his or her incorrect side of the road 9. In
President Insurance Company Ltd v Tshabalala and Another10, it was held
that going to the wrong side of the road when another vehicle is approaching
on its wrong side is a dangerous course which the circumstances may justify,
but which nevertheless should not be lightly resorted to. If other satisfactory

9 HB Klopper, The Law of Third-Party Compensation, LexisNexis 3rd Ed, page 84
10 President Insurance Company Ltd v Tshabalala and Another 1981 (1) SA 1016 (A) at 1020B-D

means are available for avoiding the accident, then that course should not be
taken, because there is always the risk tha t the other party may come back to
his correct side11. Applying this salient principle to the present factual matrix, I
am of the view that the insured driver did not do what a reasonable person
would have done when faced with a similar situation. He had p lenty of space
on the left -hand side and, in my view, swerving to the left was a far safer
option than swerving to the wrong and incorrect side of the road. This is what
a reasonable person would have done. The insured driver’s testimony that
there was a deep slope on the left holds no water, as all that he needed to do
in the circumstances was to slightly swerve to the left to avoid the collision.

[27] Furthermore, the trite principle of our law is that a driver who remains on his
correct side of the road whilst being approached by another vehicle on its
incorrect side of the road will rarely be found to be negligent 12. In this regard, I
conclude that the insured driver’s attempt to exonerate himself from blame by
stating that he tried to manoeuvre to avoi d the collision is inherently
improbable, as it is not borne out by the objective facts and evidence
presented at the trial. The law is very clear that it does not mean a driver who
is being approached by a vehicle on the incorrect side of the road is not
required to take evasive action as soon as he is being approached. In such a
case, a driver is required to take all reasonable steps to avoid the collision 13.
In the present matter, as already stated, the only reasonable way to avoid the
collision from happening would have been to swerve to the far left, rather than

11 President Insurance Company Ltd v Tshabalala, ibid
12 HB Klopper, ibid page 84
13 Burger v Santam 1981 (2) SA 704 (A)

to the right. In my view, he had plenty room of and space to do so. All that he
could have done to avoid the collision was to swerve a little bit to the left.
[28] However, the matter does no t end there. It is obvious from the photographs
that the point of impact is very close to the white line on the plaintiff’s lane of
travel. What is also a matter of common cause is that the plaintiff’s vehicle
landed where it was after the accident because of the impact caused by the
collision. There is no evidence as to what steps the plaintiff took to avoid the
collision. It is trite that every driver has the responsibility to avoid an accident,
and the plaintiff should have played his part, which he did not. That therefore
leads me to consider whether the plaintiff contributed to the occurrence of the
collision and, if so, to what degree or extent. In other words, a determination
needs to be made of their relative degrees of negligence. In my view, to a
greater degree, the insured driver was negligent, and judging from the facts,
such negligence amounts for 80% of the accident, while that of the plaintiff is
equal to 20%. I conclude that blame should therefore be apportioned 80% -
20% in favour of the plaintiff.

[29] Consequently, I make the following order.
(a) That the defendant is held liable to pay 80% of the plaintiff’s proven
damages.
(b) That the defendant is liable to pay plaintiff’s party and party costs in
terms of scale B of the Uniform Rules of Court

______________________________________
T.A. NKELE
ACTING JUDGE OF THE HIGH COURT

APPEARANCES:
Counsel for the Plaintiff: A FROST
Instructed by: Jaco Hattingh Attorneys
Plaintiff’s Attorneys
28 – 7th Avenue
Newtown Park
GQEBERHA
6000
Tel: 041 364 2624
Fax: 041 364 3464
Email: jaco@jhla.co.za
Mr J Hattingh/rh/BEZ15D)

Counsel for the Respondent: R Swartz

Instructed by: The State Attorney
Defendant’s Attorneys
29 Western Road
Central
6000
Tel: 066 303 4077
Email: renes@raf.co.za
Link: ML-0824202247929
Ref: Bezuidenhout, RW/RS

Heard on: 29 August 2025
Delivered on: 29 January 2026