THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
JUNE VAN DER MERWE
and
ROAD ACCIDENT FUND
Not Reportable
Case no: 1453/2022
Applicant
Respondent
Neutral citation: Van Der Merwe v Road Accident Fund (Leave to Appeal)
(Case no 1453/2022) (6 February 2026).
Coram: MAMOSEBO J.
Heard: 27 November 2025.
Delivered: 6 February 2026.
Summary: Application for leave to appeal - Reliance on s 17(1)(a)(i) and (ii)
of the Superior Courts Act 10 of 2013 - Whether the envisaged appeal has
reasonable prospects of success and or - Whether there are compelling reasons
for the appeal to be heard - Neither of the grounds are established - Leave to
appeal is refused.
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ORDER
1. The application for leave to appeal is dismissed with costs.
JUDGMENT ON APPLICATION FOR LEA VE TO APPEAL
MamoseboJ
[1] The applicant, Ms June van der Merwe, is seeking leave to appeal to the
Full Court of this Division against the whole of my judgment and order
handed down on 8 August 2025, in which I dismissed her claim for
damages in respect of injuries sustained in a motor vehicle accident. The
respondent, the Road Accident Fund (RAF), is opposing the application.
[2] The applicant relies on s 17(1 )(a)(i) and (ii) of the Superior Courts Act1
in her contention that the appeal would have reasonable prospects of
success, and that there is a compelling reason for the appeal to be heard.
Even where a court is unpersuaded of the prospects of success, it must
nevertheless enquire into whether there is a compelling reason to entertain
the appeal. A compelling reason includes an important question oflaw or
a discrete issue of public importance that will have an effect on future
I JO of 2013.
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disputes. 2 Leave may also be granted where the interests of justice so
demand, such interests constituting a compelling reason for the appeal to
be heard. 3 In determining whether leave to appeal should be granted, the
merits of the appeal are of vital importance and will often be decisive.4
[3] The applicant's case, as I understood Mr De la Rey, rested on the opinion
of the reconstruction expert, Mr Konrad Walter Lotter, damage to the
vehicles, and the photographs. The mainjudgment tackled the issue of the
evidence of the expert, whose evidence did not stand alone but also relied
on the information of the insurance investigators who did not testify.
There was no application to admit any portions of the evidence whose
probative value depended on the uncalled witnesses as contemplated in
s 3(1) of the Law of Evidence Amendment Act5. Of significance is that
Ms Van der Merwe, as the driver of one of the vehicles, pleaded amnesia
and had no recollection of the accident and whether she took any steps to
avoid it. She sustained a fracture on her left hand, multiple fractures to the
left lower leg involving her knee, and multiple fractures to the left foot.
Surely, medical evidence was necessary to address her condition and the
impact of those injuries to her recollection of the collision. No explanation
was proffered why no medical evidence was adduced.
[4] The Supreme Court of Appeal (SCA) in the Road Accident Fund v Slvf
cautioned in the following terms:
'This case demonstrates the perils parties face when they rely exclusively on the
opinions of experts without laying any factual basis for such opinions. In a trial action
2 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd2020 (5) SA 35 (SCA) para 2.
3 Ramakatsa and Others v African National Congress and Another (724/2019) [2021) ZASCA 31 (31 March
2021) para 10.
4 See Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and
Others 2016 (3) SA 317 (SCA) paras 23-24.
5 45 of 1988.
Others 2016 (3) SA 317 (SCA) paras 23-24.
5 45 of 1988.
6 (1270/2018) [2019] ZASCA 103 (22 August 2019) para 1.
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"[i]t is fundamental that the opinion of an expert must be based on facts that are
established by the evidence and the court assesses the opinions of experts on the basis
of 'whether and to what extent their opinions advanced are founded on logical
reasoning'. It is for the court and not the witness to determine whether the judicial
standard of proof has been met."'
[5] The SCA in PriceWaterhouseCoopers Incorporated and Others v
National Potato Co-operative Ltd and Another7 made the following
insightful remarks:
' . .. The basic principle is that, while a party may in general call its witnesses in any
order it likes, it is the usual practice for expert witnesses to be called after witnesses
of fact, where they are to be called upon to express opinions on the facts dealt with by
such witnesses.'
[ 6) The argument by Mr De la Rey that Road Accident Fund v SM (supra)
involved two reconstruction experts, and the case before me only had one
expert whose evidence was uncontested and must be admitted, is
misplaced. I could not ignore the fact that the applicant (as the plaintiff in
the impugned judgment) did not testify; some points were based on the
information of insurance investigators who also did not testify; and her
father's evidence did not take the matter any further.
[7] As the plaintiff, the applicant bore the overall onus of proof, which did
not shift solely because the Road Accident Fund did not call any
witnesses. The fact that absolution was not granted at the end of the
plaintiffs case does not mean that she had made a case then. The main
judgment dealt with the issue of absolution and bears no repeating. 8
7 [2015) ZASCA 2; [2015) 2 All SA 403 (SCA) para 80.
8 See Van der Merwe v Road Accident Fund(1453 /2022) [2025) ZANCHC 74 (8 August 2025) paras 18-19.
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[8] Having carefully and dispassionately considered this application,9 I am
satisfied that there are no cognisable prospects of success nor compelling
reasons that warrant the attention of the Full Court of this Division to
ente11ain the envisaged appeal. It therefore follows that this application
stands to fail. There is no reason why costs should not follow the result.
[9] In the result, the following order is made:
1. The application for leave to appeal is dismissed with costs.
Appearances
For applicant:
Instructed by:
For respondent:
Instructed by:
MAMOSEBOJ
JUDGE OF THE l-IlGH COURT
NORTHERN CAPE DIVISION
Adv. H.E. De la Rey
Haarhoffs Inc.
Mr. A. Mogano
The State Attorney
9 See Smith v S2012 (1) SACR 567 (SCA); [2011] JOL 26908 (SCA) para 7.