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in compliance with the law and SAFLII Policy
IN THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISON, PRETORIA
CASE NO: 078043/2024
(1) REPORTABLE:YES/NO
(2) OF INTERST TO OTHER JUDGES :YES/NO
(3) REVISED
DATE 09/02/2026
SIGNATURE
In the matter between:-
MTHOKOZISI NKOSI PLAINTIFF
And
THE ROAD ACCIDENT FUND DEFENDANT
JUDGEMENT
___________________________________________________________________
MATIKA AJ
Introduction
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1. This is a damages claim by the plain tiff, Mthokozisi Nkosi (Mr Nkosi ) for bodily
injuries sustained in a motor vehicle accident that occurred on 27 March 2023 in
Kwesamkhulu, Waterbus, Pongola, Kwazulu Natal province.
2. The claim is against the Road Accident Fund (“the Fund”) as the statutory insurer
in terms of the Road Accident Fund Act1 (“the Act”).
Default
3. This is an application for default judgment in terms of Rule 31(2 ) ( a) 2 The
combined summons was served on the Defendant on 18 July 2024.
4. The Defendant was afforded 10 days within which to deliver a notice of intention
to defend and failed to file its notice of intention to defend. The dies has expired.
5. Application for default judgement was served on the defendant on the 21
November 2024.
6. Notice of Set-down for the 30 January 2026 was served electronically on the 10
December 2025 and by hand on the 12 December 2025.
7. Up to date hereof, the Defendant still remains in default of filing a notice of
intention to defend, thereby justifying the Plaintiff to proceed on the default
judgment roll on a default judgment basis.
Disputed issues
1 Act 56 of 1996, as amended.
2 Rule 31(2)(a) reads: “ Whenever in an action the claim or, if there is more than one
claim, any of the claims is not for a debt for liquidated demand and the defendant is in
default of delivering of notice of intention to defend or of a plea, the plaintiff may set the
action down as provided in sub -rule (4) for default judgment and the court may, after
hearing evidence, grant judgment against the defendant or make such an order as it
deems fit.”
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8. The matt er was set -down for merits only, and therefore the i ssue of liability is
separated from the issue of quantum in terms of Rule 33(4) of the Uniform Rules
of the court.
9. The allegations in Mr Nkosi ’s particulars of claim is that the claim arose from a
motor vehicle collision that occurred when a motor vehicle with registration
numbers and letters, K[...] (hereinafter referred to as “ the insured motor vehicle ”)
there and then driven by one Mr Ketuwe Mohoto (hereinafter referred to as the
“insured driver “) collided with the motor vehicle with registration numbers and
letters: N[...]. At the time of the time of the collision plaintiff was a driver of the
motor vehicle with registration numbers and letters: N[...].
10. The plaintiff’s pleaded case on the particulars of claim is that: “ The collision was
caused by the sole negligence of the insured driver, who was negligent in one or
more or all of the following respects: He executed an inappropriate and dangerous
manoeuvre without ascertaining whether it was safe to do so; he changed lanes at
an inopportune time without ascertaining whether it was safe to do so; he drove at
an excessive speed under the circumstances; he failed to apply his breaks
timeously, sufficiently or at all ,alternatively he drove a vehicle with a defective
braking mechanism; he omitted to drive with due care, skill, caution and/or
circumspection; he failed to keep his vehicle under proper control; he failed to
avoid the collision when by the exercis ing of reasonable care and skill he could
and should have done so ,he failed to keep a proper lookout . ”
11. The plaintiff deposed to section 19(f ) affidavit in terms of the Act 3 under oath
describing how the accident happened, According to the said affidavit it is stated
as follows :
3 Act 56 of 1996, as amended.
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“I was travelling towards N2 road between Kw esamkhulu and waterbus,
Pongola, when a truck came to my lane of travel , while I was trying to avoid
head on collision , it lost control and hit my motor vehicle on the side. The
truck driver is Ketuwe Mohoto.”
12. The accident was reported at the South African Police Service in Pongola
under CAS No: 2221032023 and a certain constable Nxumalo of the Accident
Unit completed accident report, a sketch plan and photographs, from
Constable Nxumalo description of the accident , it is clear that he does not
know how the accident occurred. He recorded that “It is alleged by the truck
driver that he was travelling straight approaching Kwesamkhulu while Toyota
Tazz coming from opposite direction jumped the lane and hit the first trailers
of his truck”.
13. The Police Accident report, the plan and key to the plan were properly
discovered and no objection to their use were lodged. No evidence gainsaying
the Plaintiff`s version of the how the accident happened.
Evidence of Mr Nkosi
14. Mr Nkosi’s oral testimony is that he was involved in a motor vehicle accident
on 27 March 2023 at approximately 20:00. He was a driver of Red Toyota
tazz, the accident occurred on the N2 road, between Kwesamkhulu and
waterbus in Pongola road, the visibility was not clear as the accident took
place at night and his lights were on and working properly at the time of the
accident, He further testified that he was driving 80 kilometre s per hour and
maximum speed limit is 100 kilometers per hour and he was driving within the
normal speed limit, he testified that the vehicle he was driving belo ngs to one
Mr Sanele Ntshangasi , who was a passenger at the time o f the accident, he
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testified that the truck had bright lights on , he testified that the accident took
place on the curve , he testified that the truck came from the opposite
direction, the truck went to his lane of travel and he tried to avoid head on
collision by swerving to the left , and when he came back to the road he
collided with the back trailer of the truck. He testified that the truck was driving
at a higher speed, he blamed the driver of the truck for said collision.
15. He testified further, that as a direct results of the said accident he sustained
injuries on his head, chest, knees, left leg and thigh, he was taken by
ambulance from the scene of the accident to Itshelejuba hospital. This has
been confirmed by the Hospital records.
16. The defendant did not call any witness on merits.
Authorities
17. The claim in this instance falls under section 17(1) (b) of the Act4. Section
17(1)(b) of the Act stipulates the following:
“17 Liability of Fund and agents – (1) The Fund or an agent shall
(a) …
(b) subject to any regulations made under section 26, in the case of a claim
for compensation under this section arising from the driving of a motor
vehicle where the identity of neither the owner nor the driver thereof
has been established, be obliged to compensate any person (third
party) for any loss or damage which the third party has suffered as a
result of any bodily injury to himself or herself … caused by or arising
from the driving of a motor vehicle by any person …, if the injury … is
4 Act 56 of 1996, as amended
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due to the negligence or other wrongful act of the driver or owner of the
motor vehicle …” (own emphasis)
Issues for determination
18. It is common cause, in this instance, that the plaintiff, Mr Nkosi has suffered
bodily injuries. The Fund’s liability to compensate Mr Nkosi accordingly
turns on the question of whether the driver of the truck was negligent and
whether such negligence, if proven, caused the damage suffered by Mr
Nkosi. If so, the Fund is statutorily liable to compensate Mr Nkosi for his
proven or agreed damages. The slightest degree of negligence on the part
of the insured driver is sufficient to satisfy the requirements of section 17 (1)
of the Act.5
19. It is trite law that the onus rests with the plaintiff to prove negligence on the
part of the defendant. There is no onus on the defendant to show that he
had not been negligent, but, once the plaintiff has proved an occurrence
giving rise to an inference of negligence on the part of the defendant, the
latter has to give an explanation which is sufficient to dispel the prima facie
proof of negligence, otherwise he runs the risk of judgment being given
against him. See: Ntsala and 0thers v Mutual & Federal Insurance Co
Ltd 1996 2 SA 184 (T).
20. It is trite that every driver has a duty to scan the road ahead of him at all
times, and to avoid a collision from happening. In the matter of Road
Accident Fund v Grobler 6 the Supreme Court of Appeal held that in a
situation similar as in casu, the proper approach is not to confine the inquiry
5 Act 56 of 1996, as amended
6 (96/06) ZASCA 78; (2007] SCA 78(RSA); 2007 (6) SA 230 (SCA) (31 May 2007)
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into the negligence to the conduct of the driver from the moment they
became embroiled in an emergency. The inquiry must extend to cover what
steps a driver took to avoid the impending emergency . If he/she had an
opportunity to take measures ahead of the emergency to avoid the accident,
and he/she failed to do what a reasonable person in similar circumstances
would have done, then he /or she would have been negligent.
21. In Road Accident Fund v Grobler 7 the Supreme Court of Appeal held
that:"[19] It is clear from the evidence that the respondent was plunged into
a situation of sudden emergency, that he had no more than a second within
which to escape that emergency, and that he effectively was given a choice
between danger, or veering away from it and hoping that it would not follow
him.
22. In Rodrigues v SA Mutual & General Insurance Company Ltd 8 Van
Heerden AJA stated the following on 280H -281A:" Where the evidence
indicate that the accident occurred on the correct side of the insured driver
and suggesting that the latter was plunged in a situation of sudden
emergency as the result of the negligence on the part of the other driver
who veered off his path of travel into the incorrect path, the former is in my
view duty bound to show what steps he nonetheless took to avoid the
accident.
Discussion
23. The Plaintiff must still satisfy the court that the insured driver was negligent
in some way.
7 2007 (6) SA 230 (SCA) (supra)
8 1981(2) SA 274 (A)
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24. The Plaintiff’s counsel Mr Malange, submitted that had the driver of the truck
kept a proper lookout, he/she would see the plaintiff’s vehicle and would
have avoided the accident from happening . It was further submitted that the
driver of truck was travelling at a higher speed and failed take avoid the
accident as he was duty bound to do so, this submission was supported by
evidence of Mr Nkosi. It was further submitted that the defendant is 100%
liable to the plaintiff and no apportionment as the re is no witness called on
behalf of the defendant to testify.
25. The plaintiff’s case before the court is that, the truck went to his lane of
travel, this evidence is uncontested.
26. The general approach to follow in an instance where the vehicle travelled on
the incorrect side of the road is prima facie proof of negligence on the part
of the said driver, unless an explanation is given for such an action. HB
Klopper,9 has the following view:
“(a) Collision on the incorrect side of the road – If there is irrefutable proof
of a collision on the incorrect side of the road, such collision
constitutes prima facie negligence on the part of the driver who was
found to be on his incorrect side of the road at the time of the collision.
Once the plaintiff has established that the collision did in fact occur on
his side of the road, the defendant has to explain his presence on the
defendant’s incorrect side of the road. If the explanation is insufficient
to dispel the inference of negligence arising from his presence on the
incorrect side of the road, the defendant will be held negligent.”
9 HB Klopper The Law of Collisions in South Africa 7ed (LexisNexis Butterworths, 2003)
at 78.
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27. Klopper’s statement above is in support of provisions of Regulation
296(1) of The Regulations to the National Road Traffic Act 10, which
reads as follows:
“(1) Any person driving a vehicle on a public road shall do so by
driving on the left side of the roadway and, where such roadway
is of sufficient width, in such manner as not to encroach on that
half of the roadway to his or her right: Provided that such
encroachment shall be permissible– (a) where it can be done
without obstructing or endangering other traffic or property which
is or may be on such half and for a period not longer than is
necessary and prudent and provided that it is not prohibited by a
road traffic sign”.
28. The plaintiff’s further evidence is that he was travelling towards N2 road
between Kwe samkhulu and waterbus, Pongola, when a tru ck came to
his lane of travel, While he was trying to avoid head on collision, the
truck lost control and hit motor vehicle on the side. The sketch plan
shows the trailer of the truck on the plaintiff’s lane of travel. In Marais v
Caledonian Insurance Co Ltd 11 the court held that proof that a vehicle
was travelling on the incorrect side of the road is accepted as prima
facie proof of driver’s negligence.
29. The plaintiff further evidence is that the insured drive r is the sole cause
of accident, this evidence was not challenged by the defendant.
10 National Road Traffic Act 93 of 1996
11 1967 (4) SA 199 (E) at 202F.
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30. The plaintiff also testified that the truck had bright lights on throughout,
this evidence was not challenged.
31. The plaintiff evidence was that the insured driver was travelling at high
speed, this evidence was not challenged.
32. There is no evidence regarding the speed at which the insured driver
was driving, there’s no explanation of the truck /driver’s presence on the
plaintiff’s lane of travel, there is no evidence explaining why the truck
bright lights were on all the times.
33. There is no evidence placed before the court as to what steps the
insured driver took to avoid the imminent sudden emergency he found
himself in, the insured driver is the person who could have told the c ourt
what steps he took to avoid the collision as he was duty bound to, but
was not called to do so.
34. The plaintiff’s evidence calls for an answer from the defendant and in the
absence of any version contrary to the plaintiff’s version, I find on the
evidence before me, that there is nothing to suggest that the plaintiff
drove negligently in any way.
Contributory negligence
35. There is no plea from the d efendant, and the issue of contributory
negligence is simply not raised.
36. A full Court of this division recently confirmed in the matter of Allan Rae
v Road Accident Fund 12 that if no contributory negligence is pleaded,
no apportionment should be made. The court a quo initially found
12 2025 (A114/2022) (21 May 2025)
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contributory negligence on the part of the plaintiff (appellant, Allan Rae)
and apportioned liability at 75/25%, in the plaintiff’s favour. The full court
set aside the 75/25 apportionment, holding the RAF 100% liable based
thereon that: the appellant's version of the accident was the only version
before the court, and was supported by the accident report; the RAF did
not file a defence or submit any plea of contributory negligence; there
was no basis for the lower court to infer negligence on the part of the
plaintiff.
37. In Fox v RAF 13 the Full Bench of this Honourable Court stated:
“ Defendant would have to adduce evidence to establish negligence on
the part of the Plaintiff on a balance of probabilities.”
38. In Moloi v RAF 14 the court held: “The defendant called no witne sses
to prove such contributory negligence . It follows therefore that the
Plaintiff's version on the cause of the accident remained unchallenged
and therefore no contributory negligence could be established by the
Defendant.”
39. In Kabini v Road Accident Fund 15 the court held: “It is trite that a
plaintiff only has to prove 1% negligence on the part of an insured
driver for a claim to be established. It is then for the defendant to prove
contributory negligence on the side of the plaintiff.”
40. The d efendant bears both the onus and duty to begin to prove
contributory negligence on the part of the Plaintiff. In Laurens v Road
13 (A548/16) [2018] ZAGPPHC (26 April 2018)
14 (84024/2016) [2020] ZAGPPHC 87 (26 March 2020)
15 26209/2018) [2020] ZAGPPHC 100 (19 February 2020)
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Accident Fund 16 this court considered the judgments of Ntsala v
Mutual & Federal Ins Co Ltd 1996 (2) SA 184 (T) 190, Alberts v
Engelbrecht 1961 (2) SA 644 (T) and Motor Insurers Association of
South Africa v Boshoff 1970 (1) SA 489 (A) 502 in reaching the
conclusion that the onus rests upon the Defendant to begin.
41. In Ndaba v Purchase 17 the court stated, where contributory
negligence is not pleaded by the defendant, “[t]hat being so, it seems to
me that the case resolved itself into a so -called one percenter and that
no question of contributing negligence or apportionment of damages
could arise'.
42. In Blignaut v RAF (24248/2015)[2017] ZAGPPHC 940(15 December
2017) it was confirmed that: “It is trite law that the defendant must
prove the contributory negligence of the plaintiff ’s. The defendant failed
to discharge its onus in proving plaintiff s contributory negligence. I
therefore find no contributory negligent on the part of the plaintiff”.
43. In light of the fact that no contributory negligence pleaded by the
defendant and no evidence adduced by the defendant to prove
contributory negligence on the part of the plaintiff, I am of the view that
contributory negligence is not applicable in this matter.
44. In the premises ,I make the following order:
(a) The Draft Order marked “X” is made an order of Court
16 31816/2017) [2018] ZAGPPHC 621 (23 August 2018),
17 [1991] 2 All SA 63 (E) 63
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___________________
F MATIKA
Acting Judge of the
High Court of South Africa
Gauteng Division, Pretoria
APPERANCES:
For the Plaintiff
Mr T Malange
081 591 5142
Instructed by:
Malange Madou Attorneys
012 321 0984
info@malangemadou.co.za
For the Defendant: No Appearances