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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: 1195/2024
In the matter between:
GCOBISA MDLANDAZI Plaintiff
and
ROAD ACCIDENT FUND Defendant
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] The plaintiff sued the Road Accident Fund (the Fund) for damages under
several head s in the sum of R6 000 000.00 for the bodily injuries he sustained
resulting from an accident that took place on 25 November 2023 at or near Scenery
Park Road, East London. At the time of the accident, the plaintiff was the driver of
his vehicle, and he alleges that the accident was caused by the negligent driving of
the insured motor vehicle by the insured driver.
[2] In his particulars of claim, the plaintiff alleged that on the day of the
accident, he was driving his white Polo Vivo with registration le tters and numbers
H[...] when the insured driver of a white V olvo bearing registration letters and
numbers H[...]2 lost its control and collided with his vehicle. The accident took
place in East London at or near Scenery Park Road, a public road. As a result of the
accident, he sustained serious bodily injuries.
[3] The Fund denies liability for the plaintiff’s claim. In its plea dated 03
October 2024, it put the plaintiff to the proof of all the allegations he made
regarding the occurrence of the ac cident. Regarding the alleged negligence on the
part of the insured driver, the defendant pleaded that the accident was as a result of
the plaintiff’s sole negligence in that, he drove his vehicle at an excessively high
speed; he failed to keep his vehicle under proper control; he failed to keep a proper
lookout; he failed to apply brakes timeously or at all; and he failed to avoid the
accident when by the exercise of reasonable care and skill he could and should
have done so, inter alia.
The trial
[4] On the date of the trial of the parties applied that the merits of the plaintiff’s
claim be separated from the quantum of damages. This application was granted.
[5] In proof of his claim, the plaintiff gave viva voce evidence as the only
witness and f urther adduced evidence of the accident report and the hospital
records showing that he was admitted at St Dominics Hospital, East London at or
around 18h35 on the same day of the accident. On the face of it, the accident report
was compiled by Constable W M Ngwaza of the Scenery Park police station at
17h15 on 25 November 2023, checked by Sgt Bata of the same station, and it was
ascribed Occurrence book number 1341/11/2025 and SAPA accident register
number 27/11/2025. Both these documents were discovered be tween the parties
and were admitted in evidence by consent between them.
The issues for determination
[6] The issues to be decided by this Court are therefore, whether an accident
occurred on 25 November 2023 which resulted in the plaintiff suffering bodily
injuries; whether the plaintiff’s bodily injuries were caused by the negligent
driving of another vehicle; or whether, as pleaded by the defendant, it was caused
by negligence on the part of the plaintiff.
The plaintiff’ s evidence
[7] The plaintiff testified that around 17h20 on 25 November 2023 he was
driving to work from Mdantsane towards East London along the Scenery Park
Road. He was travelling at the speed of 30-40 km/h, and the road had no markings.
The place where the accident took p lace is very busy as there is a tavern and car
wash nearby. Along the road to his left, there was a stationary Toyota Avanza
where a hawker was selling meat, and a line of customers were waiting to make
their purchases.
[8] As he was about to reach a spee d hump next to the Mnguni Car Wash and
Butchery, he lowered the speed of his vehicle, and there was at that same time a
Toyota Avanza that had been approaching from the opposite direction and its driver
had also lowered its speed in order to get over the s peed hump. Suddenly, a white
V olvo sedan overtook the oncoming Toyota Avanza in high speed and encroached
on his side of the road. In order to avoid the collision, he was forced to swerve to
the right as the left side of the road was obstructed by the stat ionary Avanza, the
hawker, and his/her customers that were standing in line to make their purchases.
Had he swerved to the eft, he would have run those persons over or collided with
the stationary Avanza. Due to the high speed at which the V olvo was driven , he
could not finish his manoeuvre, and the V olvo collided with his vehicle. When the
vehicles collided, his vehicle was propelled outside the road, and it landed in the
yard of the car wash nearby. The accident report depicts the offending vehicle
partially on the plaintiff’s path of travel and the plaintiff’s vehicle partially in the
area where the Car Wash is situated.
[9] It emerged from the plaintiff’s further testimony during cross -examination
by Mr Gona who represented the defendant that even though the weather was rainy
when the accident took place, the rain had no bearing on visibility. The front light
of his vehicle was damaged. The point of impact was inside his lane of the road.
The offending vehicle was at a distance of 6 -7metres when he first saw it
overtaking the oncoming Toyota Avanza and it was driven towards him in high
speed. There was no other way for him to avoid the collision in the circumstances
other than swerving to his right.
[10] Mr Skoti indicated that the police officer who compiled the accident report is
no longer in the employ of the SAPS, and no one from the Scenery Park SAPS was
willing to come forward and testify regarding the report. At the close of the
plaintiff’s case, the defendant adduced no evidence in rebuttal.
The parties’ submissions
[11] Although Counsel rendered oral arguments on the date of trial, I directed
them to file written submissions afterwards. In the plaintiff’s written submissions,
Mr Skoti submitted that in as much as the plaintiff was a single witne ss whose
evidence must be treated with caution, he gave credible evidence, and this Court
must accept his version as the truth. Regarding the sudden emergency that the
plaintiff found himself in, Mr Skoti invited this Court to have regard to the trite
principle of the law which is to the effect that a driver confronted with a sudden
emergency neither has the time nor the opportunity to weigh the pros and cons of
the situation in which he finds himself, and that due allowance must be made,
therefore, for pos sible error of judgment. He further submitted that the plaintiff
acted in the best way to avoid danger in the sudden emergency, and it cannot be
said that he was negligent.
[12] The plaintiff, so the submissions went, put forward a version with facts
which are sufficient to support the conclusion that the defendant’s insured driver
was negligent. His evidence establishes upon a preponderance of probabilities that
the insured driver was the sole cause of the accident which led to the injuries he
sustained. I t was Mr Skoti’s submission further, that there is no factual basis on
which a finding may be made that there was negligence on the part of the plaintiff,
hence, the Fund must be held 100% liable for the plaintiff’s claim.
[13] Mr Gona indicated that he would not make any submissions as the Fund did
not proffer any version in rebuttal of the plaintiff’s case. That being the case, in the
defendant’s written submissions, he contended that a finding must be made that the
plaintiff contributed to the injuries that he suffered as a result of the accident by his
own negligence. In this regard he further submitted that as a driver the plaintiff had
a duty to keep a proper look out.
[14] In dealing with this contention and with reference to the case of Nogude v
Union and South-West Africa Ins Co Ltd,1 Mr Skoti acknowledged in the plaintiff’s
heads of argument that it is the duty of every driver to keep proper lookout at all
material times, with entails continuous scanning of the road ahead, fro m side to
side for obstruction. That being so, he submitted that in the present case, there is no
factual basis for the contention that the plaintiff contributed to the harm causing
accident by his own negligence, and therefore, a finding ought to be made that the
accident was caused by the sole negligence of the insured driver.
The legal principles
[15] Section 17 of the Road Act Fund Act 56 of 1996 makes provision for the
Fund’s liability for loss or damage suffered by a person as a result of bodily
injuries caused by or arising from the driving of a motor vehicle by any person if
the injury is due to the negligent or wrongful act of the driver.
[16] In order to succeed in his claim, the plaintiff had to establish on a balance of
probabilities that her in jury arose out of the negligent driving of a motor vehicle
and that there is some connection between the driving and her injury. 2 In other
words, the question to be answered is whether the plaintiff has, on a balance of
probabilities, discharged the onus of establishing that the collision was caused by
negligence attributable to the defendant (insured driver). 3 It has been said that the
‘balance of probabilities’ entails more than the fact that the probabilities favour one
party and not the other. 4 Therefore, the onus resting on the plaintiff will be
discharged if the court is satisfied on a preponderance of probabilities that his
1 1975 (3) SA 685 (A).
2 Kemp v Santam Insurance Co Ltd 1975(2) SA 329 (C) at 330F; Van Wyk v Lewis 1924 AD 438 at 444.
3 Stacey v Kent 1995 (3) SA 344 (ECD) at 352I-J.
4 Schwikkard PJ (et al), Principles of Evidence, 4th Ed, 2016, page 627, at 32.7.
version is true and therefore acceptable, in that it is probable that the particular
state of affairs existed.
Discussion
[17] Even though no evidence was adduced by the defendant in rebuttal of the
plaintiff’s version, in determining whether the plaintiff has discharged the onus that
rests on him, of proving his claim against the Fund, I must still have regard to the
defendant’s plea as it stands together with the plaintiff’s version. Furthermore, the
fact that the plaintiff’s version was not rebutted by the Fund does not mean that it
must be accepted without further ado. The single version that is before court must
still be measured against the probabilities.
[18] The evidence of the plaintiff is that of a single witness. Section 16 of the
Civil Proceedings Evidence Act 25 of 1965 provides that judgment may be given
in any civil proceedings on the evidence of any single comp etent and credible
witness. In other words, only credible evidence shall be sufficient to enable a Court
to give a judgment. The court must be satisfied that the single witness has told the
truth. In determining the credibility of a single witness, this Co urt must weigh the
evidence of the single witness and consider its merits and demerits, and having
done so, decide whether it is trustworthy and whether it is satisfied that the truth
has been told despite the shortcomings or defects or contradictions in t he witness’s
evidence.5
5 S v Sauls 1981 (3) SA 172 (A) at 180E–G. Even though this principle was laid down in a criminal case, it holds
true for the assessment of the evidence of a single witness in a civil trial.
[19] The approach to be followed in assessing the credibility of the witness’s
evidence was laid down in Stellenbosch Farmers’ Winery Group Ltd. and Another
v Martell & Cie SA and Others,6 where the Court held:
‘[t]he court’s fin ding on the credibility of a particular witness will depend on its impression
about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness’s candour and deme anour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv)
external contradictions with what was pleaded or put on his behalf, or with established fact or
with his own extra curial statements or actions , (v) the probability or improbability of particular
aspects of his version, (vi) the calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events. . .’7
[20] What clearly emerges from the eviden ce of the plaintiff is that he was alert
to his surroundings as he drove on the Scenery Park Road. Upon approaching the
speed hump, he lowered his speed. He was mindful of the obstruction of his left
side of the road by another vehicle and the line of cust omers to a hawker that was
vending on the left side of that road. When he first saw the encroaching vehicle
suddenly overtaking the oncoming vehicle in high speed, it was at a distance of 5-6
metres, and he swerved to his right in an attempt to avoid the c ollision. Owing to
high speed at which the offending vehicle was driven, he had not completed his
manoeuvre. It has not been suggested that the plaintiff was himself driving at a
high speed. Importantly, his evidence stands uncontroverted.
[21] No factual basis was laid by the defendant in its plea and in evidence to
support the contention that the plaintiff contributed to his injuries by his own
negligence by failing to keep a proper look out. The defendant pleaded, instead,
negligence by failing to keep a proper look out. The defendant pleaded, instead,
that the plaintiff’s negligent driving was the sole cause of the accident. There is a
6 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and Others 2003 (1) SA 11 SCA.
7 Ibid, para 5.
difference between the two assertions. The purpose of the pleadings is to define the
issues for the other party and the court, and a party has a duty to allege in the
pleadings the material facts upon which it relies.8 In this connection, Uniform Rule
18(4) provides:
‘Every pleading shall contain a clear and concise statement of the material facts upon which the
pleader relies for his or her claim, defence or answer to any pleading, as the case may be, with
sufficient particularity to enable the opposite party to reply thereto.’
[22] It is impermissible for a party to plead one case and seek to advance another
at the trial of the matter. Apart from this, no pertinent questions were put to the
plaintiff by Mr Gona aimed at imputing that he was negligent, solely or to some
degree, by fai ling to keep a proper lookout. This was important, for indeed it was
held in Nogude v Union and South -West Africa Insurance Co. Ltd 9 that ‘a proper
look-out entails a continuous scanning of the road ahead, from side to side, for
obstructions or potential obstructions. It means more than looking straight ahead -
it includes an awareness of what is happening in one's immediate vicinity. He (the
driver) should have a view of the whole road from side to side and in the case of a
road passing through a built -up area, of the pavements on the side of the road as
well.’10 Jansen JA further remarked that driving with “virtually blinkers on” would
be inconsistent with the standard of the reasonable driver in the circumstances of
this case.’11
[23] The fact that Mr Gona made the aforementioned submissions regarding the
plaintiff’s alleged contributory negligence after the plaintiff had left the witness
stand militates against the defendant. The consequences of failure to cross-examine
8 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) (30 November 2009),
para 11.
9 1975(3) SA 685 (A).
10 Ibid, at 688A.
11 At 688C.
the witness are that such failure is considered to be an indication that the party who
had the opportunity to cross-examine did not wish to dispute the version or aspects
of the version of the particular witness who was available for cross -examination
during the course of the trial. This is a trite principle of the law.12
[24] In the absence of any evidence in rebuttal, upon a consideration of the
evidence adduced before me, I have no reason to reject the version of the plaintiff
regarding the fact the injuries he sustained were as the resu lt of the sole negligence
of the insured driver. What remains is the question of costs.
Costs
[25] Mr Skoti submitted that costs must be awarded on scale B referred to in Rule
67A of the Uniform Rules, and that costs of two counsel be allowed where
employed. After the parties filed their written submissions, I invited Counsel to file
further written submissions of the narrow issue of scale of costs, it having appeared
in the plaintiff’s written arguments that Mr Skoti sought costs on Scale B.
[26] In the further written submissions filed on behalf of the plaintiff on the
question of costs, Mr Skoti placed emphasis on the dictum in Mashavha v Enaex
Africa (Pty) Ltd13 where Wilson J remarked:
‘. . . When setting a scale under the rule, a court will generally be careful to say whether its
decision has been influenced only by the nature or complexity of the matter, or also by the way
the case was presented to it.’14
12 President of the Republic of South Africa and Others v South African rugby Football Union and Others 2000 (1)
SA 1 (CC). para 61.
13 2025 (1) SA 466 (GJ).
14 Id, para 14.
In that same case, the learned Judge further held that the default position set under the rule is
that, in the absence of contrary indication, counsel’s costs will be recovered on scale “A, unless
the application of a higher scale has been justified by careful reference to clearly identified
features of the case that mark it out as unusuall y complex, important or valuable. The learned
Judge went on to stated that run-of-the-mill cases, which must be the vast majority of cases in the
High Court, should not attract an order on the B or C scales.15
[27] Mr Skoti made a comparative analysis of the present case and the matter of
Sigcau v Road Accident Fund 16 in which this Court awarded Scale C upon a
consideration of the inherent difficulties in that matter which included the failure of
the police in their duty of the investigation of the scene o f the accident and the
collation of the record of information relevant to the accident. 17 He submitted that
even though those difficulties marked the case unusually complex, in both matter,
the plaintiffs were avoiding a head -on collision and both cases in volved a
determination being made on the reasonableness of the plaintiff’s action in an
emergency situation.
[28] Emphasis was further placed by Mr Skoti on the nature of the claims and the
manner in which the cases were presented in both cases. On this score, he
highlighted the fact that in both the present matter and in Sigcau, the court dealt
with the merits of the claim in which the Fund raised a bare denial of the
allegations made by the plaintiff and still led no evidence in rebuttal of the version
of the plaintiff.
[29] Mr Skoti submitted that in the present of the present case, while the issues
before court were not complicated, the plaintiff ‘stood to create a picture of the
accident himself for the court and prove all the elements of delict, and the case was
15 Id, para 16.
16 Unreported judgment of Sigcau v Road Accident Fund (1779/2024) [2025] ZAECELLC 20 (2 September 2025).
17 Sigcau, para 61.
determined on the bases of merits and evidence of a single witness.’ He further
submitted that the hearing lasted for just over an hour and that the matter was
competently and ethically pursued by both practitioners concerned. In the
defendant’s further written submissions, Mr Gona took the view that costs ought to
be recoverable on Scale A.
[30] Apart from the general rule that costs follow the result, the court exercises
its discretion on costs in accordance with what is fair between the pa rties. The
court, in terms of Rule 67A has the powers to exercise control over the maximum
rate at which counsel’s fees can be recovered under such an award. 18 Mr Gona did
not substantiate his submission that costs must be recoverable on Scale A.
[31] I agree with Mr Skoti’s submissions that the present matter is not complex.
With that said, I am persuaded that there is merit in Mr Skoti’s submissions when
regard is had to the manner in which the plaintiff presented his case, in contrast to
the defendant who, as it happens in most of the cases that are heard in this Court,
adduced no evidence to controvert it. For this reason, costs on Scale B are
warranted.
[32] As regards costs of two counsel where so employed, I presume that this
submission was erroneously made by Mr Skoti since it only appeared in the
plaintiff’s first written submissions. The matter was first set down for trial on 10
November 2025. On that occ asion, Mr Skoti appeared alone for the plaintiff. The
test regarding costs consequent upon the employment of two counsel is trite – it is
18 Mashavha, footnote 12, supra, para 5.
whether the employment of two counsel was a wise and reasonable precaution on
the part of the litigant.19
[33] In making an assessment whether two counsel were warranted, the court has
regard the nature of the dispute between the parties, the length of the hearing, the
importance and complexity of questions of law involved. 20 Furthermore, Mr Skoti
acknowledged that while there are features of the present case which justified a
higher scale of costs, it was not a complicated one, and it was devoid of the
inherent difficulties that beset the Sigcau matter where services of two counsel
were engaged. He further acknowledged t hat the hearing of the present matter
lasted for just over an hour. For these reasons, it cannot simultaneously be said that
the employment of two counsel in this case was a wise and reasonable precaution
on the part of the plaintiff.
[34] In the result, I make the following order:
1. The defendant is held liable for 100% of the plaintiff’s damages as may
be proven or agreed, resulting from the motor vehicle accident that
occurred on 25 November 2023 at or near Scenery Park Road, East
London.
2. The determinati on of the quantum of damages shall stand over for
determination on a later date.
3. The defendant shall pay the plaintiff’s costs on Scale B referred to in
Uniform Rule 67A, and such costs shall include costs of Counsel.
19 De Klerk v Steven -Lee Properties (297/12) [2013] ZASCA 54 (04 April 2013), at paragraph 21; Long Beach
Homeowners Association v MEC for Economic Development, Environmental Affairs and Tourism (Eastern Cape) &
Others, unreported Full Bench Appeal judgment per Pickering J in case number CA 316/2017, Eastern Cape
Division, Grahamstown, delivered on 29 March 2019, at paragraph 48.
20 Motaung v Mukubela and Another, NNO 1975 (1) 618 (O) at 631.
___________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Adv. D Skoti
Instructed by : MM Tshozi INC., East London
For the defendant : Mr S Gona
The Office of the State Attorney, East London
Date heard : 24 November 2025
Date delivered : 17 February 2026