SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISON, PRETORIA
CASE NO: 56128/2020
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 25/02/2026
SIGNATURE:
In the matter between:-
ZWELISHA EUGENE SIBIYA PLAINTIFF
And
THE ROAD ACCIDENT FUND DEFENDANT
JUDGEMENT
MATIKA AJ
1. This is an action for damages brought by the plaintiff Zwelisha Eugene Sibiya
against the Road Accident Fund in terms of the provisions of the Road Accident
Fund Act (No.56 of 1996), as amended.
2. The plaintiff sues for personal injury sustained in a m otor vehicle accident
which occurred on 26 February 2019.
3. It was common cause that the plaintiff was represented by Advocate Masango
and the Defendant was not represented.
4. This matter came before me in respect of merits only and on default basis in
terms of Rule 31(2) (a)1 of the uniform Rules of Court.
5. The plaintiff was involved in a motor vehicle accident on 26 February 2019,
the claim was lodged with the defendant on 31 January 2020, the combined
summons was served on the defendant on 27 Octobe r 2020, notice of set-down was
served on the defendant on 15 January 2026 and the defendant failed to defend the
action and The dies has expired.
6. The matter was set -down for merits only, and therefore the issue of liability is
separated from the issue o f quantum in terms of Rule 33(4) of the Uniform Rules of
the court.
7. The allegations in the plaintiff’s particulars of claim is that the claim arose from
a motor vehicle collision that occurred on 26 February 2019 at approximately 16H30
at or near Mlonde High School, Mvutshini Location, Kwazulu -Natal, the Plaintiff was
knocked by a motor vehicle with registration letters and numbers N[...] ("the Insured
Vehicle") there and then driven by Nduduzo Selby Buthelezi .The plaintiff was at all
material times a pedestrian at the time of the said accident.
8. In broad t erms, the plaintiff ’s alleges and pleaded that: “The collision was
caused by the sole negligence of the insured vehicle, He having been negligent in
one or more or all of the following respects: He failed to keep a proper lookout, He
failed to keep the v ehicle he was driving under proper or effective control, He drove
at an exercise speed in the circumstances, He failed to apply the brakes of the
vehicle either timeously, adequately or at all, He failed to take any or adequate steps
to avoid the accident when by the exercise of reasonable care and diligence he
1 Rule 31(2)(a) reads: "Whenever in an action the claim or, i f 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 evidenc e, grant judgment against the defendant or
make such an order as it deems fit."
could and should have done so, as a result of the aforesaid accident the plaintiff has
suffered bodily injuries including left tibia and fibula fracture".
9. The plaintiff deposed to section 19(F) af fidavit in terms of the Act 2 under oath
describing how the accident happened, According to the said affidavit it is stated as
follows:
"On or about the 26 February 2019 at approximately 16:30 at or near Mlonde
High school, Mvutshini location, Margate, Kw azulu -natal province, I was a
pedestrian standing on the side of the road, at a T -Junction , waiting to cross
the road, when a motor vehicle bearing registration letter and numbers N[...],
there and then driven by Bhuthelezi Ndududzo Selby, came drivin g at
excessive speed and swerved to my direction in order to avoid hitting a motor
vehicle in front of him and hit , I attempted to run from the said motor vehicle
but it was too late”.
10. The accident was reported at the South African Police Service in Margate,
KwaZulu-Natal under CAS No: 1160022019 and constable J Khuzwayo of the
Accident Unit completed accident report and a sketch plan, from constable Nxumalo
description of the accident, it is confirmed that the plaintiff was knocked down by a
motor vehicle as a pedestrian.
11. The Police Accident report, the plan and key to the p lan were properly
discovered and no objection to their use were lodged. No evidence gainsaying the
Plaintiffs version of the how the accident happened.
12. Application to present evidence of the plaintiff and his expert witnesses, and
any other relevant w itness by way of affidavit in terms of Rule 38(2) of the Uniform
Rules was sought and granted. Application was served on the defendant and it was
not opposed by the defendant.
2 Act 56 of 1996, as amended.
13. The claim in this instance falls under section 17(1) (b) of the Act 3. Sectio n
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 drivi ng 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 due to the negligence or other wrongful act
of the driver or owner of the motor vehicle ... " (own emphasis)
14. It is common cause, in this instance, that the plaintiff, Mr Sibiya has suffered
bodily injuries. The Fund's liability to compensate Mr Sibiya accordingly turns on the
question of whether the driver of the insured vehicle was negligent and whether su ch
negligence, if proven, caused the damage suffered by Mr Sibiya . If so, the Fund is
statutorily liable to compensate Mr Sibiya for his proven or agreed damages. The
slightest degree of negligence on th e: part of the insured driver is sufficient to satis fy
the requirements of section 17 (1) of the Act.4
15. Section 24 (5) of the Act 5 provides that: " If the fund or the agent does not,
within 60 days from the date on which a claim was sent by registered post or
delivered by hand to the fund or such agent a s contemplated in subsection (1),
object to the validity thereof, the claim shall be deemed to be valid in law in all
respects."
16. There is no evidence before the court that the defendant has objected to the
validity of the plaintiff's claim.
3 Act 56 of 1996, as amended
4 Act 56 of 1996, as amended
5 Act 56 of 1996, as amended
17. It is t rite 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 negl igence 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
Others v Mutual & Federal Insurance Co Ltd 1996 2 SA 184 (T).
18. 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 happenin g. In the matt er of Road Accident Fund v
Grobler6 the Supreme Court of Appeal held that in a situation similar as in casu, the
proper approach is not to confine the inquiry 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.
19. The Plaintiff's counsel, submitted that the plaintiff's evidence on how the
accident occurred is unchallenged, the plaintiff's pleaded case is that the "The
collision was caused by the sole negligence of th e insured vehicle, he having been
negligent in one or more or all of the following respects :He failed to keep a proper
lookout, He failed to keep the vehicle he was driving under proper or effective control,
He drove at an exercise speed in the circumstan ces, He failed to apply the brakes of
the vehicle either timeously, adequately or at all, He failed tb take any or adequate
steps to avoid the accident when by the exercise of reasonable care and diligence
steps to avoid the accident when by the exercise of reasonable care and diligence
he could and should have done so, as a result of t he aforesaid accident the plaintiff
has suffered bodily injuries including Left Tibia and fibula fracture.
20. It was submitted that the defendant is 100% liable to the plaintiff and no
apportionment as the defended did not defend the matter nor file plea.
6 (96/06) ZASCA 78; [2007] SCA 78 (RSA); 2007 (6) SA 230 (SCA) (31 May 2007)
21. The plaintiff's case before the court is that, the insured driver collided with the
plaintiff who was on the side of the road. this evidence is uncontested.
22. 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 court what steps he took to avoid the
collision as he was duty bound to, but was not called to do so.
23. The plaintiff's evidence calls for an answer from the defendan t 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 was negligent.
24. There is no plea from the defendant, and the issue of contributory negligence
is simply not raised.
25. In Maseko v Road Accident Fund 7 In this case plaintiffs particulars of claim
stated that on 12 March 2016, he was a pedestrian who was walking alongside the
road when collision occurred along the R557 between willa's farm and Thu lamtwana,
Gauteng Province. The court found that, accordingly the driver of the vehicle was
negligent in one or more of the respects pleaded in paragraph 5 in the plaintiff's
particulars of claim. As a result, the defendant was fond to be 100% liable for t he
plaintiffs proven damages arising as a result of the collision.
26. In Fabrinso v Road Accident Fund 8, the plaintiff’s evidence was that the
collision occurred on a pavement (sidewalk). This portion of his evidence is
uncontracted as the defendant presen ted no evidence in rebuttal. A sidewalk is part
of the street specifically allotted to pedestrians. A pedestrian is not obliged to
anticipate that a motor vehicle will either directly or indirectly intrude on his or her
way. That would conflict with the wh ole purpose of a sidewalk. [1] In normal
circumstances a reasonable pedestrian on a sidewalk would not for esee that a
circumstances a reasonable pedestrian on a sidewalk would not for esee that a
vehicle would without warning com e from behind mount the pavement and struck
7 (379994/17) (2019) ZAGPPHC 45 (6 February 2019)
8 (3676/11) [2016] ZAGPJHC 242 (9 September 2016)
him. The defendant was ordered to pay the plaintiff 100% of the plaintiff's agreed or
proven damages.
27. In the matter of Allan Rae v Road Accident Fund 9 the full bench held that if
no contributory negligence i s pleaded, no apportionment should be made. The court
a quo initially found 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 appor tionment, 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.
28. In Fox v RAF10 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."
29. In Moloi v RAF 11 the court held: "The defendant called no witnesses 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."
30. In Kabini v Road Accident Fund 12 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 the n for the defendant to prove contributory negligence on the side
of the plaintiff."
31. The defendant bears both the onus and duty to begin to prove contributory
negligence on the part of the Plaintiff. In Laurens v Road Accident Fund 13 this
9 2025 (A114/2022) (21 May 2025)
10 (A548/16) [2018] ZAGPPHC (26 April 2018)
11 (84024/2016) [2020] ZAGPPHC 87 (26 March 2020)
12 26209/2018) [2020] ZAGPPHC 100 (19 February 2020)
13 31816/2017) [2018] ZAGPPHC 621 (23 August 2018),
court considered the judgments of Ntsala v Mutual & Federal Ins Co Ltd 1996 (2)
SA 184 (T) 190, A lberts 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.
32. In Ndaba v Purchase 14 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'.
33. 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'.
34. 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 plaint iff, I am of the view that contributory negligence is not applicable in
this matter.
35. In the premises ,I make the following order:
(a) The Draft Order marked "X" is made an order of Court
F MATIKA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD: 13 FEBRUARY 2026
14 [1991] 2 All SA 63 (E) 63
DELIVERED: 25 FEBRUARY 2026
APPERANCES:
For the Plaintiff
Adv Masango
081 417 2481
Instructed by:
Komane Attorneys Inc
Tel: 012 343 6364
Email: thabo@komanelaw.co.za
For the Defendant: No Appearances
“X”
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 56128/20
BEFORE THE HONOURABLE, JUSTICE MATIKA AJ
ON THIS THE 13TH OF FEBRUARY 2026.
MS TEAM
In the matter between:
ZWELISHA EUGENE SIBIYA PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
LINK NO: 4944776
This order is made an Order of Court by the Judge whose name is reflected herein,
duly stamped by the Registrar of the Court and is submitted electr onically to the
Parties/their legal representatives by email. The order is further uploaded to the
electronic file of this matter on Case lines by the Judge his/her secretary. The date of
this order is deemed to be 13th of February 2026.
COURT ORDER
BY AGREEMENT BETWEE THE PARTIES
IT IS ORDERED THAT:
1. Defendant is liable for 100% of the Plaintiffs proven damages.
2. Application in terms of rule 33 (4) is granted.
3. Application in terms of rule 38 (2) Is granted.
4. The issue of Quantum is postponed sinedie.
5. The Defendant is ordered to pay the Plaintiffs taxed or agreed party and party
costs on High Court Scale, which costs will include, but will not be limited to the
following:
4.2. The costs of Plaintiff's Counsel for perusal, preparation, drafting of
Heads of Arguments and to attend Court for Trial on 13 th of February 2026.
(SCALE A)
4.3. The costs of Plaintiff attorney to attend Court for Trial on 13 th of
February 2026.
5. The Defendant is ordered to pay the Pl aintiff's taxed and/or agreed party and
party costs within 14 days from the date upon which the accounts are taxed by the
Taxing master and/or agreed between the parties.
6. Should payment of taxed costs not be effected timeously, Plaintiff will be
entitled to recover interest at the rate of 10.25% on the taxed or agreed costs from
date of allocator to date of payment.
7. The amount referred to above will be paid to the plaintiff's attorneys, A.M
Komane & Associates trust account, details of which are the following:
ACCOUNT HOLDER KOMANE & ASSOCIATES
NAME OF ACCOUNT FIRST NATIONAL BANK
ACCOUNT NUMBER 6[…]
BRANCH NAME CENTURION
TYPE OF ACCOUNT TRUST ACCOUNT
BY ORDER
THE REGISTRAR
REGISTRAR OF THE HIGH
COURT PRETORIA
FOR THE PLAINTIFF: ADV. MASANGO
CELL: 081 417 2481
PLAINTIFF'S ADVOCATE
FOR THE DEFENDANT: