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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case No: 3194/2014
In the matter between:
PHINDISWA STALI Plaintiff
and
ROAD ACCIDENT FUND
Defendant
Coram: ANDREWS AJ
Heard: 15 No vember 202 4; 6 December 2024; 04 & 7 April 2025; 30
September
– 3 October 2025; 17 February 2026.
Delivered: 15 April 2026
Summary: Motor vehicle accident — Road Accident Fund — Identity of driver in
dispute — Mutually destructive versions — Plaintiff alleged to be rear seat
passenger and deceased alleged to be driver — Defendant contended plaintiff was
driver — Extensive factual evidence, including independent eyewitness testimony,
and competing expert evidence considered — Unchallenged evidence that plaintiff
could not drive at time of accident — Expert injury-pattern evidence — Deceased’s
injuries consistent with driver position in right -hand-drive vehicle without airbags —
Plaintiff’s injuries consistent with rear seat passenger — Credibility, reliability and
inherent probabilities assessed in accordance with Stellenbosch Farmers’ Winery —
Unexplained single -vehicle rollover — Permissible inference of negligence drawn
from unexplained loss of control — Defendant held liable for 100% of plaintiff’s
proven or agreed damages — Costs awarded on Scale B — Quantum postponed.
___________________________________________________________________
ORDER
1. The defendant is declared liable to compensate the plaintiff for 100% of her
proven or agreed damages arising from the motor vehicle collision which
occurred on 28 January 2012 on the N2 near Macassar.
2. The defendant is ordered to pay the plaintiff’s costs of suit to date, such costs
to be taxed or agreed on the party-and-party scale on Scale B.
3. The issue of quantum is postponed sine die.
JUDGMENT
ANDREWS, AJ:
Introduction
[1] The plaintiff instituted an action against the defendant, the Road Accident
Fund, for damages arising from a motor vehicle accident which occurred on 28
January 2012 on the N2 highway near Macassar in the Western Cape. The plaintiff
alleged that she sustained injuries while travelling as a passenger in a Ford Ikon
motor vehicle that overturned during the incident.
[2] The plaintiff’s case is that the accident occurred either as a result of an
unidentified motor vehicle colliding with the Ford Ikon driven by Ms Bus isiwe
Nkosinaye (“the deceased”), or alternatively when the deceased lost control of the
vehicle. The defendant disputes liability and contends that the plaintiff herself was
the driver, that the accident was a single-vehicle collision caused by a tyre burst, and
that no unidentified vehicle was involved.
Factual Background
[3] At the time of the accident, the plaintiff was travelling in a Ford Ikon together
with three other women, namely Ms Busisiwe Nkosinaye, Ms Aphiwe Mbengashe
and Ms Nomveliso Gxamsa. The plaintiff’s evidence is that she was seated in the
right rear passenger seat and that the deceased was driving the vehicle. According
to this version, the deceased lost control of the vehicle while travelling along the N2,
causing it to veer off the roadway and overturn, whereupon all occupants were
ejected.
[4] The defendant denies this account. It alleges that the plaintiff was the driver of
the vehicle and that the accident was caused by a sudden tyre burst, resulting in a
single-vehicle rollover. The defendant consequently disputes both the plaintiff’s
status as a passenger and any negligence on the part of the deceased.
[5] The identity of the driver at the time of the accident is the central factual
dispute between the parties. If the plaintiff was the driver, her claim cannot succeed.
If, however, she was a passenger and the d eceased drove the vehicle negligently,
the defendant’s liability follows.
Issues for Determination
[6] The parties advanced mutually destructive factual versions. The dispute turns
primarily on the identity of the driver of the Ford Ikon at the time of the accident and,
depending on that determination, whether negligence on the part of the insured
driver has been established.
[7] The following issues accordingly fall to be determined:
(a) Whether the plaintiff has proved, on a balance of probabilities, that she was a
passenger and not the driver of the Ford Ikon at the time of the accident.
(b) If the plaintiff was a passenger, whether Ms Busisiwe Nkosinaye (“the
deceased”) was the driver of the vehicle.
(c) If the deceased was the driver, whether she was negligent in losing control of
the vehicle.
(d) Whether such negligence, if established, caused the vehicle to leave the
roadway and overturn, resulting in the plaintiff’s injuries.
[8] The determination of the first issue is dispositive of the claim. If the plaintiff
was the driver, her claim must fail. If she was a passenger and the deceased drove
negligently, the defendant is liable subject to proof of causation.
The Legal Framework
The Onus and Standard of Proof
[9] The plaintiff bears the overall onus of establishing, on a balance of
probabilities, the elements of delict necessary to sustain liability. 1 In the present
matter, this requires proof that she was a passenger and not the driver of the insured
vehicle, that the insured driver was negligent, that such negligence was causally
linked to the accident, and that she sustained injuries as a result thereof. There is no
onus on the defendant to disprove the plaintiff’s case.2
[10] The civil standard requires only that the court be s atisfied that the
plaintiff’s version is more probable than not. As Lord Denning put it, the burden is
discharged once the tribunal can say ‘we think it more probable than not ’; if the
probabilities are equal, it is not discharged. 3 Miller v Minister of Pensions4,
crystallises that the onus is discharged once the court concludes that the plaintiff’s
version is more probable than the opposing one . If the probabilities are evenly
balanced, the plaintiff cannot succeed. This Court adopts that standard.
1 See Pillay v Krishna 1946 AD 946 at 952 – 3.
2 Ninteretse v Road Accident Fund [2018] ZAGPPHC 439 at para 28.
2 Ninteretse v Road Accident Fund [2018] ZAGPPHC 439 at para 28.
3 See Miller v Minister of Pensions 1947 2 All ER 372 (KB) at 374; Ocean Accident and Guarantee
Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159D; See also South African Bank of Athens v 24
Hour Cash CC (A3027/2016) [2016] ZAGPJHC 217 (11 August 2016) at para 9.
4 Miller v Minister of Pensions [1947] 2 All ER 372 (KB).
[11] Where parties advance mutually destructive factual versions, the Court
must resolve the dispute by applying the approach articulated in Stellenbosch
Farmers’ Winery Group Ltd v Martell et Cie (“Stellenbosch Farmers’ Winery”) 5. This
requires an assessment of the credibility of the witnesses, the reliability of their
evidence, and the inherent probabilities. These considerations are interrelated and
must be weighed together in determining whether the party bearing the onus has
discharged it.
[12] It i s a fundamental principle of trial fairness that where material
evidence is not challenged in cross -examination, the party calling the witness is
ordinarily entitled to assume that such evidence is accepted. As held in President of
the Republic of South Af rica v SARFU 6, unchallenged evidence generally stands
unless it is inherently improbable. This principle is particularly relevant where a
party’s case depends on factual assertions inconsistent with evidence left undisputed
at trial.
[13] Both parties relied on expert medical evidence to determine the identity
of the driver. The evaluation of expert testimony is governed by well -established
principles. In Michael & Another v Linksfield Park Clinic (“Linksfield”)7, the Supreme
Court of Appeal held that expert opinion does not bind the Court. The Court must
evaluate whether the opinion is based on facts proved in evidence and whether the
reasoning process is logical, coherent, and scientifically defensible8.
[14] An expert opinion founded on assumptions or unproven facts carries
little or no weight. As reaffirmed in PriceWaterhouseCoopers Inc v National Potato
Co-operative Ltd (“PWC v NPC”) 9, the more an expert relies on facts not established
5 Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie and Others 2003 (1) SA 11 (SCA) at para
5.
6 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 1 (CC).
Others 2000 (1) SA 1 (CC).
7 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA).
8 Ibid at para 39.
9 PriceWaterhouseCoopers Inc and Others v National Potato Co-operative Ltd 2015 (2) SA 403
(SCA).
in evidence, the less weight the opinion attracts. Similarly, in JA obo DA v MEC for
Health, Eastern Cape 10, the court stressed that expert reasoning must be anchored
in proved facts and that shortcomings in factual foundation or methodology materially
diminish probative value .11 Thus, e xpert reasoning must be clearly distinguished
from speculation.
[15] It is further trite that expert opinion involves the drawing of inferences
from established facts. As explained in AM and Another v MEC for Health, Western
Cape12, and earlier in Caswell v Powell Duffryn Associated Collieries Ltd 13, inference
must be grounded in objective facts . Where such facts are absent, the reasoning
process collapses into conjecture.
[16] Experts are required to assist the Court impartially. It has been
repeatedly held by our courts that selective engagement with evidence, reliance on
litigation-driven assumptions, departure from the expert’s field of competence, or
advocacy in place of objective analysis undermine credibility and diminish evidential
value.14
[17] Where direct evidence of how an accident occurred is lacking, the
Court may rely on inferential reasoning, provided the inference drawn is consistent
with the proven facts and represents the most plausible and probable explanation.
As held in Ocean Acciden t and Guarantee Corporation Ltd v Koch 15, where more
than one inference is possible, the Court must select the one that accords best with
the totality of the evidence and the inherent probabilities.
Negligence and Causation
[18] Once the identity of the driver is established, the plaintiff must prove
negligence and causation. Negligence is determined with reference to whether the
10 JA obo DA v MEC for Health, Eastern Cape 2019 (3) SA 221 (SCA).
11 Ibid at paras 11 – 17.
12 AM and Another v MEC for Health, Western Cape 2019 (5) SA 113 (CC) at para 21.
13 Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C 152 (HL).
13 Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C 152 (HL).
14 See National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer)
[1993] 2 Lloyd’s Rep 68 (QB); Stock v Stock 1981 (3) SA 1280 (A).
15 Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at para 159D.
insured driver failed to exercise the degree of care expected of a reasonable driver in
the circumstances. Factual causation is established by enquiring whether, but for the
negligent conduct, the harm would have occurred, while legal causation requires that
the negligent conduct be sufficiently closely connected to the harm for liability to
attach.
[19] In claims arising from single -vehicle rollover accidents, courts have
recognised that an unexplained loss of control of a vehicle may give rise to a
permissible inference of negligence, unless an adequate explanation consistent with
reasonable care is shown.16
[20] The Court is therefore required to resolve conflicting eyewitness
accounts, delayed and unchallenged evidence, and competing expert opinions in
order to determine the identity of the driver and, if necessary, whether the accident
resulted from negligent driving causall y linked to the plaintiff’s injuries. These
principles guide the assessment that follows.
The Evidence
[21] The following witnesses testified on behalf of the plaintiff:
(a) Ms Phindiswa Stali, the plaintiff;
(b) Mr Ibrahim Drame, the plaintiff’s husband;
(c) Ms Thombikhaya Sitayo, the plaintiff’s sister;
(d) Ms Asanda Matshele, host of the birthday gathering; and
(e) Dr Jeremy John Plaskett, specialist general surgeon and medico-legal expert.
[22] The following witnesses testified on behalf of the defendant:
(a) Sergeant E.Y. Fortuin;
(b) Ms Aphiwe Mbengashe, an occupant of the insured vehicle;
(c) Ms Nomveliso Gxamsa, an occupant of the insured vehicle;
16 See also Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A) at 573H –574B; Ocean Accident
and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159D–H).
(d) Captain Mahumi Victor Vibele April, owner of the insured vehicle; and
(e) Dr Yateen Bhupandr a Natvarlal Bhagwan, specialist general surgeon and
medico-legal expert.
[23] In addition to the oral evidence, the parties relied on documentary
evidence, much of which was common cause. This included, inter alia, the Official
Accident Report (“OAR”) and related police documentation; ambulance and
emergency services reports; Tygerberg Hospital clinical records; medico -legal and
post-mortem reports pertaining to the deceased; and the respective expert reports
prepared for purposes of the litigation. The relevance and weight of this documentary
evidence are addressed where appropriate in the evaluation that follows.
Procedural History
[24] Prior to the conclusion of the viva voce evidence, the plaintiff launched
two interlocutory applications. The first sought the admission of the post -mortem
affidavit of Dr Sairita Maistry , who performed a medico -legal post mortem
examination on the body of Ms Busisiwe Nkosinaye, in terms of section 34(1) of the
Civil Proceedings Evidence Act 25 of 1965. The second conce rned condonation for
non-compliance with Rule 36(9)(a) and (b) in respect of the expert report of Dr
Jeremy Plaskett, together with leave to call him to testify.
[25] The applications were opposed. Having heard argument, I delivered an
ex tempore judgment on 7 April 2025 in which the post -mortem affidavit was
admitted into evidence . Condonation was granted subject to defined safeguards. In
particular, the evidence of Dr Plaskett was circumscribed so as not to introduce a
new or altered case, and the Defendant w as afforded the opportunity to appoint its
own expert and to engage fully with the evidence.
[26] I expressly considered the degree of non -compliance, the explanation
advanced, the potential prejudice to the parties, and the interests of justice. The
ruling was directed at ensuring that the court was properly assisted on the central
ruling was directed at ensuring that the court was properly assisted on the central
issue in dispute , namely, the probable seating position and identity of the driver ,
while preserving procedural fairness and avoiding trial-by-ambush.
[27] The matter thereafter proceeded on that basis, with both parties
leading expert evidence. In adjudicating the merits, I have evaluated the expert
testimony within the constraints imposed by the interlocutory ruling and in
conjunction with the totality of the evidence. The subsequent presentation of expert
and lay evidence, including evidence received by way of virtual proceedings, was
conducted under conditions directed at ensuring fairnes s, transparency, and proper
forensic testing of the issues.
The Plaintiff’s Evidence
[28] The plaintiff, Ms Phindiswa Stali, testified that on 28 January 2012 she
travelled with her two children to a child’s birthday celebration in Philippi at the home
of Ms A sanda Matshele, arriving by taxi earlier that morning. The arrangement was
that the children would be transported in a microbus driven by acquaintances of Ms
Matshele, while four adult women comprising the plaintiff, Ms Busisiwe Nkosinaye
(the deceased), M s Aphiwe Mbengashe, and Ms Nomveliso Gxamsa, would travel
separately in a white Ford Ikon bearing registration number C[...].
[29] She testified that she had not previously met the other three occupants.
Upon entering the vehicle, she was instructed where to sit and took the right rear
passenger seat directly behind the driver. According to her evidence, Ms Nkosinaye
drove the vehicle from the outset. Ms Mbengashe occupied the front passenger seat,
and Ms Gxamsa the left rear seat. The microbus followed the Ford Ikon to Somerset
West, where they arrived at the Spur restaurant near Somerset Mall.
[30] The plaintiff testified that the two ve hicles parked adjacent to each
other at the Spur. She again observed Ms Nkosinaye alight from the driver’s seat
and later resume that position when the group departed. No alcohol was consumed.
The seating arrangements remained unchanged for the return journey.
[31] While travelling back towards Cape Town along the N2 in the right -
[31] While travelling back towards Cape Town along the N2 in the right -
hand lane, the plaintiff observed a truck travelling in the left -hand lane drifting or
encroaching towards their vehicle. She testified that Ms Nkosinaye reacted by
shouting and attemp ting to swerve, whereafter the vehicle veered to the right,
entered the centre median, and overturned. The plaintiff lost consciousness during
the rollover.
[32] Her next recollection was regaining consciousness the following
morning at Tygerberg Hospital. She testified that she did not inform any medical
personnel, police officer or emergency worker that she had been driving, and denied
providing any information r ecorded in the OAR. She stated that she was
unconscious at the scene and unable to communicate.
[33] Under cross-examination, the plaintiff was confronted with an affidavit
dated April 2012, certain medical records recording her as the driver, and expert
reports prepared on the basis that she had been driving. She denied having provided
such information, explaining that she was traumatised and unconscious and that any
such entries were erroneous. She testified consistently that she could not drive in
2012, held neither a learner’s nor a driver’s licence at the time, and only began
learning to drive in 2023.
[34] Mr Ibrahim Drame who was married to the plaintiff since 2001,
corroborated her testimony that she could not drive at the time of the accident. He
testified that she only began learning to drive in early 2023, with him teaching her
over a period of six to seven months, after which she obtained her driver’s licence in
February 2024.
[35] Under cross -examination, he was shown certain expert reports
indicating t hat the plaintiff was divorced or living separately from him. He disputed
these, explaining that they went through a difficult period, but never divorced. He
remained firm that the plaintiff had not been able to drive before 2023. This evidence
was never disputed.
[36] Ms Thombikhaya Sitayo, the plaintiff’s sister, testified that she travelled
in the microbus with the children. She witnessed the plaintiff get into the right -rear
in the microbus with the children. She witnessed the plaintiff get into the right -rear
seat of the Ford both in Phillippi and upon leaving the Spur. She stated that Ms
Busisiwe Nkosinaye was the driver on both legs of the journey. She had a direct line
of sight when the vehicles departed and stated that the microbus followed at a close
but safe distance, approximately the length of one to two motor vehicles.
[37] On the N2, she observed a vehicle (described variously as a truck or
delivery vehicle) approaching from the left -hand lane toward the Ford. She saw the
Ford move sharply, lose contro l, and roll multiple times toward the median. She
stated that all occupants were ejected. When they passed the scene, she saw the
Ford lying on its side and the occupants lying outside the vehicle.
[38] Under cross -examination, she was confronted with her writ ten
statement in which she recorded that the truck collided from behind. In court, she
could not confirm actual impact, attributing this to the speed at which events
unfolded. She stated that she ‘thought’ the truck made contact. Her viva voce
evidence was consistent, though her earlier affidavit had stronger language.
[39] She was also questioned on her vantage point. She maintained that
the microbus was close enough behind the Ford to see who entered which seat and
to observe the Ford’s movement leading up to the rollover. She conceded that
bystanders were already assisting when the microbus arrived at the scene but
maintained that they were still close enough to have seen the rollover itself.
[40] Ms Asanda Matshele, the host of the party, confirmed that she travelled
in the microbus and saw the plaintiff enter the right -rear seat and Ms Busisiwe
Nkosinaye enter the driver’s seat when leaving Somerset West. She observed the
Ford rolling ahead. She agreed that by the time they reached the accident scene,
bystanders were already assisting, which meant she did not witness the exact
moment of ejection.
[41] Under cross -examination, she conceded that she could not comment
on the cause of the rollover and did not see whether a truck or tyre burst was
on the cause of the rollover and did not see whether a truck or tyre burst was
involved. She identified Ms Aphiwe Mbengashe in the front passenger seat and Ms
Nomveliso Gxamsa behind her, consistent with the plaintiff’s version and
inconsistent with the defendant’s.
Defendant’s Factual Witnesses
[42] Sergeant E.Y. Fortuin made her investigator’s statement six years after
the accident. She had no independent memory of the details, including how the
plaintiff came to be listed as “driver” on the OAR. She testified that she did not make
or supervise the OAR.
[43] She stated that a ttempts were made to contact the plaintiff, but she
could not recall specific details. Importantly, she accepted that she could not dispute
the plaintiff’s version.
[44] Ms Aphiwe Mbengashe testified that she was an occupant of the Ford
Ikon on 28 January 2012 , together with the plaintiff (Ms Stali), Ms Nomveliso
Gxamsa, and the deceased, Ms Busisiwe Nkosinaye. She described herself as a
close friend of both the deceased and Ms Gxamsa, while stating that she was
acquainted with the plaintiff through extended family connections.
[45] According to her evidence, the group trave lled from Philippi to
Somerset West to attend a child’s birthday gathering, which she stated took place at
McDonald’s. She testified that the plaintiff drove the vehicle on both the outward and
return journeys. She recounted that she occupied the front pas senger seat, that Ms
Gxamsa sat behind her in the left rear seat, and that the deceased sat behind the
plaintiff in the right rear seat.
[46] She testified that shortly before the accident she and Ms Gxamsa
noticed a smell resembling a burning tyre. She stated that she raised this with the
plaintiff but received no response. According to her, the vehicle was travelling at
speed when it lost control, moved from the left -hand lane towards the right, and
rolled. She stated that none of the occupants were wearing seatbelts and that all
were ejected from the vehicle.
[47] Ms Mbengashe testified that she regained consciousness at Tygerberg
Hospital the following day and remained hospitalised for approximately four months
as a result of her injuries. She confirmed that she made a police statement on 8 June
2015, more than three years aft er the accident. She stated that this was done at the
request of the deceased’s sister, who wished to pursue a claim with the Road
Accident Fund. She further testified that she attempted to lodge her own RAF claim,
but was unable to do so due to prescripti on. She confirmed that her written
statement did not identify the plaintiff as the driver. She explained that she was not
specifically asked to record who had been driving.
[48] Under cross -examination, Ms Mbengashe stated that she had
previously seen the plai ntiff driving on other occasions and was therefore surprised
by the plaintiff’s evidence that she could not drive in 2012. She further testified that
the deceased did not drive on the day of the accident because she was eight months
pregnant and had swolle n feet, although she accepted that pregnancy does not
necessarily prevent a person from driving.
[49] She maintained that the accident was a single -vehicle rollover caused
by a tyre problem and denied that any unidentified vehicle was involved. She
acknowledged that her version differed from that of the plaintiff, Ms Sitayo, and Ms
Matshele in several respects, including the point of departure, the venue of the
birthday gathering, the seating arrangements, the lane of travel, and the cause of the
accident.
[50] Despite these discrepancies, Ms Mbengashe adhered to her version
that the plaintiff was the driver at the time of the collision and denied that her
evidence was influenced by her relationship with the deceased or by the pursuit of
Road Accident Fund claims.
[51] Ms Nomveliso Gxamsa testified virtually from the Road Accident
Fund’s offices in East London with the assistance of an interpreter. She stated that
she resided in Cape Town at the time of the accident in January 2012, and currently
resides in Mdantsane. She confirmed that sh e made a written police statement and
explained that the surname “Chandana” appearing therein was her maiden surname,
her current surname being Gxamsa.
[52] According to her evidence, the Ford Ikon carried four women on the
day of the accident, namely the plai ntiff (whom she identified as the driver), Ms
Aphiwe Mbengashe in the front passenger seat, herself in the left rear seat, and the
deceased, Ms Busisiwe Nkosinaye, in the right rear seat. She stated that she met
the plaintiff for the first time that day, h aving known the deceased as her best friend
and Ms Mbengashe as a close friend for approximately two years.
[53] She testified that none of the occupants wore seatbelts, and that the
same seating configuration applied on both the outward and return journeys to
Somerset West.
[54] Ms Gxamsa stated that shortly before the collision she heard a loud
bang, smelled burning tyre rubber, and thereafter the plaintiff lost control of the
vehicle. According to her version, the Ford Ikon veered from the left -hand l ane
towards the right, rolled multiple times, and all occupants were ejected.
[55] She testified that she was conscious at the scene, that the deceased
was badly injured and unresponsive, and that all occupants received medical
assistance. She stated that she conveyed to police and emergency personnel that
the collision was caused by a tyre burst, that the vehicle rolled, and where each
occupant had been seated.
[56] She further testified that she attended the Road Accident Fund offices
with the deceased’s father shortly after the funeral. She stated that she was informed
she did not qualify for compensation due to the minor nature of her injuries, and that
only funeral expenses could be considered on behalf of the deceased’s family.
[57] Under cross-examination, Ms Gxamsa maintained that the plaintiff had
been the driver of the vehicle and stated that, in her view, the deceased would not
have driven on the day of the accident because she was eight months pregnant. She
confirmed that the deceased held a valid driver’s li cence and that she had previously
been a passenger while the deceased was driving.
[58] She disputed the 2015 date reflected on her police statement and
denied that she attended the police station together with Ms Mbengashe on that
occasion. When confronted wi th the plaintiff’s subsequent driving licence and with
expert evidence suggesting that the deceased’s injuries were consistent with a driver
position, she rejected those propositions and adhered to her version.
[59] Despite being confronted with contrary vers ions put by the plaintiff,
Ms Sitayo, and Ms Matshele, Ms Gxamsa remained firm that the plaintiff was the
driver at the time of the accident and denied that her evidence was motivated by bias
or by the pursuit of Road Accident Fund claims.
[60] Captain Mahumi Victor Vibele April testified via the virtual platform. He
is employed by the South African National Defence Force and is currently stationed
at Lohatla in the Northern Cape. He confirmed that he was the owner of the white
Ford Ikon motor vehicle be aring registration number C[...], which was involved in the
accident on 28 January 2012.
[61] He stated that on the day of the accident he lent the vehicle to his
then-girlfriend, Ms Asanda Matshele, for purposes of transporting children and other
attendees to a birthday celebration in Somerset West. He testified that Ms Asanda
Matshele and her friends had hired a taxi, but the taxi could not accommodate all the
intended passengers. They therefore requested the use of his vehicle.
[62] He narrated that he was told that Phindiswa Stali, the plaintiff, would be
the driver of the Ford Ikon, as Ms Asanda Matshele herself could not drive. On this
basis, he handed the vehicle over at Ms Asanda Matshele ’s home earlier that day.
He did not accompany the group to Somerset West. He stated that after leaving the
vehicle with them, he departed to attend to other commitmen ts and did not witness
their departure or observe who got into which seat.
[63] Captain April testified that he received a telephone call later that same
day, shortly after the accident occurred, from a person he believed to be a police
officer. The caller inf ormed him that his vehicle had overturned on the N2 near
Somerset West. He immediately proceeded to the accident scene with a friend.
Upon arrival, he observed the heavily damaged vehicle, which he described as ‘a
wreck’, and believed irreparable. He noted that emergency personnel were already
on site and were attending to all four occupants, who were still present at the scene.
[64] He testified that the deceased, Ms Busisiwe Nkosinaye, was alive at
the scene and receiving assistance from paramedics inside the ambulance. All other
occupants were present as well. He did not see any evidence of another vehicle
being involved in the collision. He stated that he did not observe any other damaged
vehicle or debris suggesting a second vehicle.
[65] He did not give a stat ement to the police, as officers were already
present taking statements and completing the accident report. He said no police
officer approached him for information. He arranged for the vehicle to be removed
from the scene by a tow truck to a yard in Somer set West, as he had no means to
transport it himself.
[66] During cross -examination, he confirmed that he did not witness who
actually drove the vehicle and did not observe who sat where in the vehicle. Neither
did he see how the accident occurred. He did not know whether the vehicle’s airbags
did he see how the accident occurred. He did not know whether the vehicle’s airbags
deployed. He stated that he could not clearly recall whether the vehicle had airbags,
though he believed it may have had a driver-side airbag, but he was not certain.
[67] He reiterated that his knowledge of the events preceding the accident
was based solely on what he had been told, and not on anything he personally
observed.
Expert Evidence
[68] Dr Jeremy John Plaskett testified as an expert general surgeon. He
holds an MBChB from the University of Cape Town, has extensive experience in
managing blunt and penetrating trauma, completed specialist surgical training at
UCT, and since 2017 has served as Head of the Departme nt of Surgery at Victoria
Hospital. He also teaches registrars and medical students. His qualifications and
practical trauma exposure were not disputed.
[69] In formulating his opinion, Dr Plaskett relied on a body of uncontested
contemporaneous medical and in vestigative material. This included the SAPS
mortuary report and related investigator documentation, the medico -legal
post-mortem examination conducted by Dr Maistry, the EMS (Metro) report, and the
Tygerberg Hospital clinical records pertaining to the pla intiff. He also had regard to
the defendant’s expert reports prepared by Dr Bhagwan, as well as to available
photographic material and soft-tissue documentation.
[70] He emphasised that the vehicle was never inspected, there were no
photographs of the interior , and crash dynamics were unknown. Accordingly, the
only reliable and objective basis for determining seating position was injury pattern
analysis.
[71] Based directly on the post -mortem report, Dr Plaskett testified that the
deceased sustained extensive high-energy polytrauma involving several anatomical
regions. The injuries included severe blunt chest trauma in the form of a sternal
fracture, multiple bilateral rib fractures, bilateral haemothoraces, lung contusions,
and cardiac contusions. In addition, the deceased sustained significant abdominal
injuries comprising a splenic laceration, renal contusions, intra -abdominal
haemorrhage, and subendocardial haemorrhages. The lower limbs were also
severely injured, with fractures of both femurs reco rded. The post -mortem further
documented extensive soft -tissue trauma, characterised by predominantly
right-sided abrasions and lacerations affecting the peri -orbital region, scalp, ear,
shoulder, arm, forearm, hand, and flank, together with additional bilateral abrasions.
[72] Dr Plaskett testified that this constellation of injuries is characteristic of
an unrestrained right front occupant in a motor vehicle not equipped with airbags,
and is classically associated with the injury pattern sustained by a driver occupying
the right front seat.
[73] Dr Plaskett explained that a sternal fracture is a particularly significant
marker of direct steering -wheel impact, as it requires the application of substantial
anterior chest force. He further testified that bilateral fe mur fractures are strongly
correlated with impact against the dashboard or steering column and are well
recognised in trauma literature as characteristic driver -position injuries. In addition,
he stated that the absence of airbags in older Ford Ikon models materially increased
the likelihood of direct chest contact with the steering wheel during a high -energy
collision.
[74] The deceased’s predominantly right -sided soft-tissue injuries correlate
with the A-pillar, the driver-side window, and rigid right -side interior structures of a
right-hand-drive vehicle. This laterality-by-structure relationship was drawn from the
peer-reviewed article by Curtin (2007).
[75] In contrast, the plaintiff sustained a right ankle fracture; a foot
laceration; no significant chest, abdominal, or femur injury . He regarded these as
consistent with a rear -seat occupant subjected to rotational forces, and
fundamentally inconsistent with driver-specific trauma.
[76] The deceased was 32 weeks pregnant at the time of the collision.
[76] The deceased was 32 weeks pregnant at the time of the collision.
Dr Plaskett addressed the relevance of the pregnancy in detail. He testified that
pregnancy, even in late gestation, does not prevent a person from driving and does
not, in itself, determine an occupant’s seating position within a vehicle. He further
explained that uterine rupture in traumatic events is extremely rare, occurring in less
than one per cent of cases. Importantly, the post -mortem report did not include any
examination of the place nta, rendering any conclusions regarding placental integrity
speculative. Dr Plaskett also noted that, owing to the deceased’s short stature, the
steering wheel in a right -hand-drive vehicle would have aligned with the chest rather
than the abdomen, thereb y explaining the absence of uterine injury even if the
deceased had been seated in the driver position.
[77] This evidence directly undermined the defendant’s reliance on the
deceased’s pregnancy as a determinative factor in assessing either her seating
position or the mechanism of injury.
[78] He relied on accepted, medically peer -reviewed trauma studies,
including:
(a) Smith & Cummings (2002): front-seat occupants have a 39% higher risk of
death and 33% higher risk of injury17;
(b) Newgard (2005): thoracic injuries and steering-wheel associations18;
(c) Curtin (2007): distinguishing driver vs front -passenger patterns in
right-hand-drive vehicles19;
(d) Parenteau (1996): ankle injuries do not reliably distinguish seating position20.
[79] Counsel for the plaintiff submitted in argument that the trauma studies
relied upon by Dr Plaskett are directed specifically at older vehicles not equipped
17 Kathleen M. Smith, Peter Cummings ‘Passenger seating position and the risk of passenger death
or injury in traffic crashes’ – Accident Analysis and Prevention 36 (2004) 257 – 260.
18 Newgard, Lewis and Kraus ‘Steering Wheel Deformity and Serious Thoracic or Abdominal Injury
Among Drivers and Passengers Involved in Motor Vehicle Crashes’ – Annals of Emergency Medicine
– Volume 45, No. 1: January 2005.
– Volume 45, No. 1: January 2005.
19 Curtin E, Langlios N ‘Predicting driver from front passenger using only the post-mortem pattern of
injury following a motor vehicle collision’ - Med. Sci. Law (2007) Vol 47, No. 4.
20 Parenteau CS, Viano DC, Lövsund P, Tingvall C. ‘Foot-ankle injuries: Influence of crash location,
seating position and age’ - Accident Analysis & Prevention, 1996; 28(5): 607–617.
with airbags and are therefore of particular relevance to the factual context of this
matter.
[80] Dr Plaskett provided a detailed critique of the defendant’s expert. He
noted that Dr Bhagwan had shifted the deceased’s alleged seating position between
his first and second report (from front -left to rear-right), doing so solely on the basis
of belated hearsay that the deceased was pregnant and supposedly seated at the
rear. He further observed that Dr Bhagwan relied on non -medical,
non-peer-reviewed, and incomplete article extracts, including materials outside his
expertise such as crash -mechanics and airbag -system literature. In addition, Dr
Bhagwan employed an unrecognised “probability scoring system” (assigning figures
such as 10%, 30%, 70% and 90%), which is unsupported by any validated
biomechanical methodology.
[81] Dr Plaskett highlighted that the first rep ort omitted crucial right -sided
soft-tissue injuries, and that the reasoning rested on assumed “broader anterior and
lateral impact patterns” despite an absence of proven facts about the actual crash
sequence. He pointed out that Dr Bhagwan was unable to e xplain why none of the
deceased’s injuries excluded her from the driver position, and that pregnancy had
been invoked as a “forensic differentiator” even though this approach is not
supported by trauma literature and was contradicted by the absence of any placental
examination.
[82] Counsel for the plaintiff submitted in argument that these deficiencies
reflect selective engagement with the evidence, methodological overreach, and a
departure from the principles governing expert opinion as articulated in Linksfield
and PWC v NPC.
[83] No joint minute was completed because he repeatedly attempted to
engage; received delayed and incomplete communications . Discussions were
relayed through the defendant expert’s secretary. This lack of collaboration is
consistent with the plaintiff’s submission that Dr Bhagwan approached the matter in
a litigation-driven, non-scientific manner.
[84] The defendant, both in cross -examination and in its Heads of
Argument, emphasised that there was no evidence of steering -wheel deformation,
that the restraint status of the occupants was unknown, and that the dynamics of a
rollover may produce mixed and overlapping injury patterns. It further contended that
several confounding variables referenced in the Smith & Cummings studies ;
including speed, lack of restraint, and the fact of a rollover, were present in this case,
and therefore argued that the deceased’s injuries were “compatible” with trauma
sustained by a rear-seat passenger rather than a driver.
[85] However, Dr Plaskett maintained, and the plaintiff submitted, that the
constellation of injuries sustained by the deceased , namely the combination of a
sternal fracture, bilateral femur fractures, and a predominantly right -sided distribution
of soft -tissue trauma , has a far stronger correlation with a driver position in a
right-hand-drive vehicle than with any rear -seat mechanism. He emphasised that a
rollover, on its own, does not explain driver specific anterior chest injuries of this
nature, and that no peer-reviewed literature supports the defendant’s proposition that
such injuries could mimic the patterns expected of an unrestrained rear -seat
occupant in a rollover event
[86] When questioned by the court, Dr Plaskett emphasised that the speed
of the vehicle, the sequence of rolls, the initial point of impact, whether the occupants
were ejected or extracted, and the precise interior configuration of the vehicle were
all unknown. In light of these uncertainties, he stated that the only defensible
scientific method was to rely on objective injury -pattern analysis rather than engag e
in speculative reconstructions of the accident dynamics. Proceeding on that basis,
in speculative reconstructions of the accident dynamics. Proceeding on that basis,
he concluded, on a balance of probabilities, that the deceased most likely occupied
the right-front driver position and that the plaintiff was seated in the right -rear seat. In
circumstances of such uncertainty, and consonant with Linksfield, the Court must
prefer expert reasoning that remains anchored to proven facts rather than
hypotheses about unproven accident dynamics.
[87] Dr Yateen Bhupandra Natvarlal Bhagwan testified for the defendant.
He is a general surgeon in private practice, with a clinical focus on metabolic
surgery, and is currently the Chief of Surgical Oncology at Greys and Edendale
Hospitals in KwaZulu -Natal. He has approximately ten years of medic o-legal
consulting experience, predominantly for the Road Accident Fund and the State in
medico-legal matters.
[88] He prepared two reports in this matter , one in June 2025 and a revised
report dated 7 July 2025. He explained that the second report was generat ed after
he became aware , during a meeting with the RAF Forensic Department , that the
deceased was 32 weeks pregnant at the time of the accident, and after updated
information suggested that she may have been seated in the right -rear position. He
stated that this new information had not been highlighted in the materials he initially
considered, and that the pregnancy was, in his view, a potentially relevant factor for
trauma interpretation. He therefore issued a supplementary report.
[89] He confirmed that he r eviewed the medico-legal post-mortem report of
Ms Busisiwe Nkosinaye, as well as the additional documents listed in his report. He
accepted that the post -mortem report was the primary source for determining the
deceased’s documented injuries.
[90] Dr Bhagwan d escribed the deceased’s injuries as constituting fatal
polytrauma, by which he meant the presence of multiple severe injuries affecting
several anatomical regions. He testified that the documented injuries included a
sternal fracture with bilateral rib fra ctures, accompanying cardiac and pulmonary
contusions, a splenic laceration and renal contusions, fractures of both femurs, and
extensive soft-tissue trauma. The latter was predominantly right -sided, involving the
face, head, shoulder, arm, forearm, flank, and hand, together with additional
superficial and deep lacerations. He confirmed that this pattern of injuries was
superficial and deep lacerations. He confirmed that this pattern of injuries was
consistent with a high-energy traumatic event.
[91] Dr Bhagwan provided a biomechanical interpretation for each category
of injury. In relation to the sternal and bilateral rib fractures , he explained that these
are common in high frontal impacts and may be sustained by both front -seat
occupants and unrestrained rear -seat passengers, depending on the mechanism.
They may arise from di rect steering -wheel contact, chest compression, or
ejection-related ground impact.
[92] These reflect blunt chest trauma. He testified that such injuries may
arise through either direct steering -wheel impact, or through high -energy
compressive forces during ro llover or ejection. In relation to the splenic and renal
injuries he stated that these are consistent with lateral compressive forces, whether
sustained in a front-seat occupant during a lateral impact, or a rear -seat occupant in
a rollover or ejection pat tern. He noted that the deceased’s splenic injury was
significantly severe, suggesting substantial lateral force.
[93] He explained that bilateral femur fractures may arise from dashboard
impact but may also occur in ejection -type mechanisms where an individual lands in
a “jack-knife” position with knees or thighs striking the ground or another surface. He
interpreted the right-sided soft-tissue injuries as reflective of lateral compressive or
ejection trauma, consistent with right -sided impact against the vehicle interior
(window or pillar) or ground contact during ejection.
[94] Dr Bhagwan regarded the deceased’s 32 -week pregnancy as relevant
for two related reasons. First, he considered that late -term pregnancy alters normal
anatomy by displacing abdominal organs, such as the liver and spleen, into a higher
position, which he suggested may affect the distribution and interpretation of
traumatic injuries. Second, he relied on the absence of recorded placental or uterine
injury in the post -mortem report. He testified that placental abruption is commonly
injury in the post -mortem report. He testified that placental abruption is commonly
associated with direct frontal abdominal trauma in pregnant patients and, on that
basis, inferred that the lack of such findings militated against a significant direct
frontal abdominal impact, such as contac t with a steering wheel. He accepted that
uterine rupture is rare in trauma but maintained that placental injury would typically
be expected with direct frontal compression.
[95] His report included numerical probability values for various seating
positions (driver, front passenger, right -rear passenger). He testified that these
values were derived from a set of trauma studies, primarily Smith & Cummings
(2002, 2006, 2010), which he regarded as providing population -level probability
distributions fo r injury patterns relative to occupant position. He accepted, under
questioning, that these articles were not contained in the bundle before Court.
[96] He stated that, based on the total injury pattern, he considered it ‘highly
probable (60–70%)’ that the deceased was a right-rear passenger. He explained that
this probability weighting drew on:
(a) The predominance of right-sided injuries;
(b) The lack of documented placental or uterine injury;
(c) The rollover mechanism;
(d) The possibility of ejection;
(e) The absence of what he viewed as “driver-specific” injuries.
[97] In relation to driver -specific marker analysis , h e stated that certain
injuries are more commonly associated with drivers, including pedal-related
ankle/foot injuries; cervical spine injuries from acceleration–deceleration;
steering-wheel imprint injuries and forearm/wrist abrasions due to bracing. He
testified that these were not present in the deceased, and that this decreased the
likelihood of her having been the driver.
[98] He described the plainti ff’s injuries , including a cervical teardrop
fracture and a right medial malleolus fracture, as more consistent with an impact
scenario involving acceleration, deceleration forces affecting the driver’s braced foot
and neck. He indicated that such injuries could theoretically occur in a rear -end
collision or other impact where the driver’s foot is pressing against the pedal or
floorboard.
[99] He repeatedly emphasised that the exact accident dynamics were
unknown, explaining that there was no evidence e stablishing whether the collision
involved a frontal impact, whether any steering -wheel deformation occurred, whether
the occupants were restrained, what the point or sequence of impacts during the
rollover had been, or whether the occupants had been eject ed or extracted. In the
absence of these specifics, he stated that injury -pattern analysis must rely on
generalised biomechanical principles.
[100] He confirmed that the injuries could also be produced by ejection onto
a hard surface, such as when an occupant s trikes the ground or another object; by
lateral compressive forces generated during a rollover; and by high -energy side
impacts, all of which constitute alternative mechanisms capable of producing the
injury pattern observed. He testified that such mechani sms could equally produce
significant chest trauma without the involvement of a steering wheel.
[101] He accepted several areas of agreement between himself and
Dr Plaskett, acknowledging the presence of severe chest trauma, the significance of
the bilateral femur fractures in assessing the severity and direction of impact, the
rarity of uterine rupture in traumatic events, and the general difficulty inherent in
determining an occupant’s seating position in rollover crashes.
[102] He disagreed, however, w ith the conclusion that the deceased was
“most likely” the driver, stating that the injury pattern was non -specific and could be
produced under multiple configurations.
[103] Under cross-examination he confirmed that, in his first report, he had
placed the deceased in the front-left passenger seat, but he altered this conclusion in
his second report after receiving what he described as new information. He accepted
that the post-mortem report did not expressly record any placental examination, and
that the post-mortem report did not expressly record any placental examination, and
he further acknowledged that several of the articles he referenced dealt with specific
crash configurations, such as restrained occupants and frontal impacts, that were not
definitively established in this matter.
[104] He agreed that the deceased’s injuries did not exclude the possibility
that she had been the driver, although he maintained that, in his view, they were less
consistent with a driver position. He also agreed that the deceased’s short stature
might have inf luenced her proximity to the steering wheel but emphasised that a
32-week gravid uterus would limit how far forward she could have positioned herself.
He accepted that front -seat occupants in older vehicles generally tend to sustain
more severe injuries th an rear-seat occupants, and finally, he acknowledged that he
could not definitively exclude the deceased as the driver.
[105] In re-examination he clarified that his report had not proceeded on the
basis of a rear -end impact by a truck and that he had referred to such a scenario
only when it was posed to him hypothetically. He explained that his analysis
throughout was based on the documented injuries themselves rather than on any
particular version of how the accident was alleged to have occurred. He further
indicated that the level of chest trauma observed in the deceased could equally have
been caused by ejection onto a hard surface and was therefore not limited to, nor
necessarily indicative of, an impact with the steering wheel.
The Nature of the Dispute
[106] Both experts were asked to address the core issue in dispute, namely
whether, on an assessment of the injury patterns documented in the post -mortem
report and their biomechanical significance, the deceased, Ms Busisiwe Nkosinaye,
was more likely to have been the driver or a passenger at the time of the accident.
[107] Neither expert could rely on vehicle inspection, scene photographs,
information on restraint use, evidence of steering -wheel deformation or reliable
eyewitness accounts of impact sequence. The factual substrate is limited to the
documented injuries of the deceased and the plaintiff, the absence of airbags, the
documented injuries of the deceased and the plaintiff, the absence of airbags, the
right-hand-drive configuration of the vehicle, and the rollover with ejection of all
occupants.
[108] Dr Plaskett relied exclusively on o bjective, contemporaneously
recorded facts , namely the post -mortem findings, EMS records, and clinical notes.
He expressly refrained from speculating about unknown crash dynamics. His
methodology focused on the constellation of injuries and well-recognised correlations
in trauma literature.
[109] He identified three categories of injuries of significance. First, the
combination of the sternal fracture, rib fractures, bilateral haemothoraces, and
cardiac and lung contusions reflected a classical steering -wheel or chest -impact
pattern. Second, the bilateral femur fractures were indicative of dashboard or
steering-column loading. Third, the predominantly right -sided distribution of
soft-tissue injuries was consistent with the anatomical adjacency of a right -front
occupant to the A-pillar and window.
[110] His reasoning was supported throughout by recognised, peer -reviewed
trauma literature, including the studies of Smith and Cummings (2002 and 2006),
Newgard (2005), Curtin and colleagues (2007), and Parenteau and co -authors
(1996), which specifically analyse injury -pattern correlations in motor -vehicle
collisions and provide the scientific foundation for the conclusions he drew.
[111] These studies specifically evaluate the distinguishing features between
driver and passenger injury patterns, including the recognised thoracic injury
associations with steering -wheel impact; the significance of laterality markers
observed in right -hand-drive vehicles; and the injury distributions typically found in
older vehicles that were not equipped with airbags.
[112] He assessed the relevance of the deceased’s pregnancy within
accepted medical parameters, noting that uterine rupture is rare (occurring in less
than 1%), that the absence of any placental findings in the post -mortem renders any
inference of direct abdominal force speculative, and that the deceased’s short
inference of direct abdominal force speculative, and that the deceased’s short
stature would have positioned the steering wheel closer to her chest in a
right-hand-drive vehicle. He therefore treated pregnancy as a contextual factor rather
than a determinative one and avoided overstating its significance in the analysis.
[113] He candidly acknowledged the limits of what could be known (no scene
reconstruction) and expressly confined his opinion to the only objective evidence
available, namely the injury pattern. His report reflects no tendency toward
advocacy. He did not alter or tailor his conclusions based on information extraneous
to the medical record. His analysis remained within his professional expertise.
[114] Dr Bhagwan produced two reports. In his initial report, he placed the
deceased in the front -left passenger position, but in his revised report he moved her
to the right-rear position after receiving information that the deceased was 32 weeks
pregnant and that she may have been s eated in the right -rear seat. This revised
conclusion rested on “new information” that did not emanate from proven evidence
before the Court, and his reliance on such unestablished assumptions raises
concerns, in terms of PWC v NPC , about the adequacy of t he factual foundation
underpinning his opinion and the extent to which his conclusions were influenced by
information not established in evidence.
[115] Unlike Dr Plaskett, Dr Bhagwan relied on incomplete article extracts,
non-peer-reviewed engineering document s, and literature dealing with airbag and
seatbelt mechanics that extended beyond his core clinical trauma expertise , as well
as foreign studies based on left -hand-drive vehicle data and articles confined to
frontal impacts, restrained occupants, or narrow ly defined crash -mechanics
scenarios. Many of these materials were not applicable to the factual matrix of this
case, which involved unrestrained occupants in an older vehicle without airbags, a
rollover event with ejection, and a right-hand-drive configuration.
[116] His numeric probability tiers (“10%”, “60 –70%”, “>90%”) were not
based on a validated scoring system. No such model exists in peer -reviewed trauma
literature. The absence of a recognised methodology diminishes the weight of these
probabilistic assertions.
probabilistic assertions.
[117] He assigned pregnancy a significant weight as a “forensic
differentiator”, reasoning that the absence of placental injury suggested a lack of
frontal abdominal impact. However, the post -mortem report did not record any
placental examination, and the mere absence of documentation does not equate to
the absence of injury. Moreover, pregnancy , whether in relation to the position of the
uterus or the risk of placental disruption , cannot reliably be used to determine an
occupant’s seating position.
[118] Under cross -examination, Dr Bhagwan accepted that none of the
deceased’s injuries excluded the possibility that she had been the driver. He further
accepted that drivers in older vehicles commonly sustain severe chest and thoracic
injuries, and he acknowledged that a person of short stature would ordinarily sit
closer to the steering wheel. He also agreed that front -seat occupants in older,
unrestrained vehicles generally sustain more severe injuries than those seated in the
rear. In addition, he accepted that rollover dynamics introduce complexity rather than
certainty when interpreting injury patterns. Ultimately, he conceded that he could not
exclude the possibility that the deceased was the driver.
[119] His analysis repeatedly relied on unproven assumptions concerning the
accident mechanism, namely whether the impact was frontal, rear end, lateral, or
related to rollover dynamics; together with assumptions about seating positions
based on untested externa l information, and speculative reliance on pregnancy as a
meaningful forensic indicator despite the absence of any placental data. He further
proceeded on the basis of uncertainty regarding whether the occupants had been
ejected or extracted. This approach is inconsistent with the principles articulated in
Linksfield and JA obo DA , which require expert reasoning to be grounded in
objectively established and proven facts.
Assessment of the Expert Evidence
[120] Dr Plaskett’s reasoning proceeds in a logically cohe rent manner . He
begins with the objective injuries documented in the post -mortem and clinical
begins with the objective injuries documented in the post -mortem and clinical
records, relates those injuries to established biomechanical correlations, and from
there draws a probabilistic inference regarding the most likely seating positi ons of
the occupants.
[121] By contrast, Dr Bhagwan’s reasoning is significantly qualified by the
number of unknown variables, by his reliance on external assumptions, and by his
use of literature not tailored to the particular circumstances of this case, inclu ding the
age of the vehicle, its right-hand-drive configuration, and the absence of restraints.
[122] The plaintiff’s expert consistently used peer-reviewed, medically
accepted trauma literature. The defendant’s expert relied on mixed -quality sources,
some non-medical and many not applicable to this scenario.
[123] Dr Plaskett’s opinion is grounded entirely in facts established through
the post -mortem findings, whereas Dr Bhagwan’s opinion relies in part on matters
not proven in evidence, including an alleged seating position conveyed informally,
unsubstantiated assumptions about the crash mechanism, and unverified inferences
relating to pregnancy.
[124] The deceased sustained classic steering -wheel-type chest injuries,
bilateral femur fractures consistent w ith dashboard loading, and a predominantly
right-sided distribution of soft -tissue trauma correlating with the anatomical position
of a right -front occupant adjacent to the A -pillar and window. Taken together, these
features constitute objective markers th at favour the plaintiff’s version regarding the
allocation of seating positions.
[125] Dr Plaskett avoided speculation on unknown dynamics. Dr Bhagwan
repeatedly resorted to multiple hypothetical mechanisms (ejection, lateral
compression, rear-end whiplash, jack-knife landing) without factual foundation.
[126] Having regard to the logical basis of each opinion, the extent to which
each rests on proven facts, the applicability and reliability of the literature on which
the experts relied, the internal con sistency of their respective reasoning, and the
degree of speculation each approach required, the Court is satisfied that
degree of speculation each approach required, the Court is satisfied that
Dr Plaskett’s evidence is to be preferred. His opinion is methodologically sound,
scientifically defensible, based on peer -reviewed tr auma literature relevant to the
circumstances of this case, and grounded in the only objective evidence available.
[127] Conversely, the defendant’s expert evidence is s ignificantly qualified,
relies on unproven assumptions, invokes probability estimates unsupported by any
known scientific model, and is based on literature not applicable to the factual matrix.
Consequently, o n a balance of probabilities, the expert evidence supports the
conclusion that the deceased most likely occupied the right -front driver position, and
the plaintiff the right-rear passenger position.
Credibility, Reliability and the Stellenbosch test
[128] The evaluation of credibility and reliability is undertaken in a ccordance
with the well -established approach articulated in Stellenbosch Farmers’ Winery
(supra). In that assessment, the Court is required to consider, first, the credibility of
the witness, which entails an examination of the witness’s candour and demean our,
the internal consistency of their evidence, the presence or absence of bias, and
whether their version was properly challenged. Secondly, the Court must assess the
reliability of the evidence, having regard to the witness’s opportunity for observation ,
the accuracy of their recollection, and the possible impact of delay or traumatic
experience. Finally, the Court must consider the probabilities, including whether the
version advanced accords with the objective facts, common sense, and the inherent
likelihood of the events described. Where material evidence is not challenged, the
SARFU rule applies: such evidence must generally be accepted unless it is
inherently improbable.
Assessment of Factual Evidence
[129] Although the defendant pleaded that the plaintiff was the driver of the
insured vehicle at the time of the collision, it is of significance that the plaintiff’s
evidence that she was unable to drive in 2012, that she was not in possession of
evidence that she was unable to drive in 2012, that she was not in possession of
either a learn er’s licence or a driver’s licence at the time, and that she had never
driven a motor vehicle prior to 2023, was not meaningfully challenged in
cross-examination. These facts were clearly placed on record, were directly relevant
to the disputed issue of driver identity and constituted an important factual foundation
for the plaintiff’s version. The defendant’s failure to test or contradict this evidence is
a consideration to which weight must be given in assessing its reliability and in
evaluating the proba bilities, in accordance with the principle articulated in President
of the Republic of South Africa v SARFU.
[130] The defendant placed considerable emphasis on alleged contradictions
in the plaintiff’s earlier affidavit, hospital records, and certain contemporaneous
documents in which the plaintiff was recorded as having been the driver of the
vehicle. These inconsistencies were not ignored. They were assessed in the context
in which such records were generated, including the plaintiff’s state of
consciousness, the acute trauma following the accident, and the absence of any
evidence that the plaintiff personally furnished the information recorded therein.
Importantly, none of these documentary entries were corroborated by reliable direct
evidence, nor w ere they put to the plaintiff in a manner that meaningfully displaced
her consistent viva voce testimony. When evaluated against the totality of the
evidence, including unchallenged testimony, independent eyewitness accounts, and
objective injury pattern a nalysis, such contradictions do not undermine the reliability
of the plaintiff’s version.
[131] The plaintiff’s further evidence that Ms Busisiwe Nkosinaye was the
driver when the vehicles departed from Philippi and again when they left Somerset
West must be as sessed in the light of the totality of the evidence, including such
corroboration as exists, the inherent probabilities, and the evaluation of the
competing versions.
[132] Her version was corroborated by both familial witnesses and
independent eyewitnesses with no financial interest in the outcome on all material
points such as the seating positions, the identity of the driver, and the sequence of
events. She had a clear and direct vantage point for matters within her knowledge,
events. She had a clear and direct vantage point for matters within her knowledge,
and her inability to recall peripheral details (owing to loss of consciousness)
enhances rather than detracts from reliability.
[133] Mr Drame was a calm, measured witness who readily corrected
misunderstandings. He maintained, without hesitation, that the plaintiff could not
drive in 2012, and only began learning in 2023 under his supervision. This evidence
was never contradicted or challenged. He had intimate personal knowledge of the
plaintiff’s driving history. His evidence was internally consistent and aligned with the
plaintiff’s version and her licence documentation.
[134] Ms Sitayo was a satisfactory witness. She consistently described
seeing the plaintiff seated in the right -rear position on both the outward and return
journeys, and seeing Ms Busisiwe Nkosinaye driving. She had no motive to
fabricate.
[135] She made a minor concession regarding an earlier affidavit where she
used stronger language about a truck impact. She explained the inconsistency as an
error in recollection in a fast-moving event. Her candour enhances her credibility. Not
every inconsistency necessarily detracts from credibility; the nature and materiality of
the discrepancy must be assessed in context.
[136] She was travelling directly behind the Ford in a microbus. Her vantage
point was sound, and her observations were plausible given the close following
distance. Her evidence dovetails with the host, Ms Asanda Matshele.
[137] Ms Asanda Matshele was an independen t witness with no financial
interest. She consistently identified Ms Busisiwe Nkosinaye as the driver when the
vehicles departed Somerset West, and the plaintiff as the right -rear passenger. Her
evidence was limited to what she saw from the microbus and sh e did not purport to
testify about matters beyond her observation , an indicator of a careful and reliable
witness.
[138] Ms Mbengashe’s evidence was characterised by numerous material
contradictions, both internally and when measured against external evidence. These
included inconsistencies with the plaintiff’s witnesses regarding the point of
departure (car wash versus Philippi), the sequence of the route travelled, the seati ng
arrangements, the lane in which the vehicle was travelling, the cause of the collision
(a tyre burst as opposed to truck encroachment), the activities allegedly undertaken
in Somerset West, as well as contradictions with her own statement made in 2015, in
which she did not identify the plaintiff as the driver.
[139] She made her statement three years after the accident, on the same
date, before the same commissioner, in the same handwriting as Ms Nomveliso
Gxamsa’s, raising concerns about coordination. She ac knowledged being close
friends with Ms Busisiwe Nkosinaye and Ms Nomveliso Gxamsa and was directly
involved in assisting the family with potential RAF claims. Her memory was impaired
by trauma, multiple surgeries, and a lengthy hospitalisation. Delay in making her
statement and her alignment with the deceased’s family diminish reliability.
[140] Ms Gxamsa’s evidence was emotionally charged and exhibited strong
protectiveness over Ms Busisiwe Nkosinaye ’s reputation. She expressly stated she
felt it was “speaking badly” about Ms Busisiwe Nkosinaye to say she was driving.
This degree of emotional involvement be ars on the objectivity of her evidence. She
disputed the date of her own statement, despite her signature appearing under the
2015 date and despite three linked statements appearing together. Her insistence
that the police date was “wrong” is improbable.
[141] Her version was inconsistent when measured against the evidence of
independent witnesses. These inconsistencies related, inter alia, to the point of
departure, the sequence of movements, whether the Ford and the microbus
departed Somerset West together, th e seating arrangements, and the account she
provided to the police. Her evidence was materially influenced by a number of
factors, including her close friendship with the deceased and Ms Aphiwe
factors, including her close friendship with the deceased and Ms Aphiwe
Mbengashe, her active involvement in assisting the family with Road Accident Fund
enquiries, the three-year delay before providing a written statement, and the trauma
and emotional distress associated with the events. In addition, her recollection
appeared to have been reconstructed over an extended period. Collectively, these
considerations substantially undermine the reliability of her evidence.
[142] It is necessary to record that the evidence of Ms Gxamsa was received
by way of virtual proceedings. This followed difficulties encountered by the
Defendant in securing the attendance of the witness and an interpreter, despite prior
directions of the Court. The proceedings on 2 and 3 October 2025 were managed
with appropriate safeguards, including confirmation that the witness was alone,
under oath, able to hear the proceedings clearly, and afforded adequate breaks. The
Court is satisfied th at the mode of hearing did not occasion any unfairness or
prejudice to either party. In assessing the evidence, the Court remained mindful of
the circumstances under which the testimony was given and is satisfied that this
does not detract from the reliability or credibility findings ultimately made.
[143] Captain April was a neutral witness with no involvement in the accident
itself. His evidence was straightforward and uncontradicted regarding ownership of
the vehicle. He could not assist the Court on critical issues such as who drove, who
sat where, or how the accident happened. His evidence was therefore of limited
relevance.
[144] Dr Plaskett remained within his expertise, relied on peer -reviewed
trauma literature, and limited his conclusions to objective injury patterns. His
methodology was transparent and consistent.
[145] Dr Bhagwan shifted conclusions between reports based on unproven
factual assumptions, relied on incomplete or non -medical literature, and used a
non-validated probability system. His evidence was qualified and speculative.
[146] The evidence of the plaintiff and her witnesses was consistent,
mutually corroborative, and reliable on all material issues relevant to the identity of
the driver . They were aligned on the central issues, namely that the plaintiff was
seated in the rear of the vehicle and that Ms Busisiwe Nkosinaye was the driver.
[147] The defendant’s factual witnesses displayed strikingly aligned interests,
delayed statements with suggestive similarities, material contradictions, and strong
emotional or familial motivations.
[148] The Court is satisfied that the plaintiff and her witnesses are credible
and reliable, whereas the defendant’s factual witnesses are materially unreliable,
and their versions fall to be rejected where they conflict with the plaintiff’s case.
[149] Ms Aphiwe Mbengashe and Ms Nomveliso Gxamsa made statements
three years after the accident, in identical handwriting, before the same
commissioner. They were involved in attempts to lodge claims on behalf o f the
deceased’s family. Delay, trauma, and vested interests weaken their reliability. The
statements bear features consistent with reconstruction rather than
contemporaneous recollection. They carry significantly reduced weight.
The Inherent Probabilities
[150] Having evaluated the credibility and reliability of the witnesses, the
Court must now consider the inherent probabilities, viewed holistically and in light of
the objective evidence. In cases involving mutually destructive versions, probabil ities
often provide the decisive factor. The question is not whether each piece of evidence
is perfect, but which version is more consonant with common sense, objective
indicators, and the proven facts.
[151] Although the defendant contended that the plaintiff was the driver of
the vehicle, the plaintiff’s evidence that she could not drive a motor vehicle in 2012,
did not hold a learner’s or driver’s licence at the time, and only began learning to
drive in 2023 , was not challenged in cross -examination. This evidence therefore
stands uncontroverted and falls to be accepted, in accordance with the principle
articulated in SARFU unless it is inherently improbable.
[152] It is accordingly inherently improbable that she would have been
[152] It is accordingly inherently improbable that she would have been
entrusted with the task of transporting three strangers; that she would have
voluntarily driven a vehicle despite lacking the ability to do so; or that those familiar
with her circumstances, including her cousin Ms Asanda Matshele , would have
permitted her to drive. The plaintiff, her sister, and the host of the gathering all gave
consistent evidence that, on both legs of the journey, the plaintiff was seated in the
right rear seat and Ms Busisiwe Nkosinaye was the driver.
[153] The defendant’s alternative version depends on the acceptance of a
series of inherent improbabilities, in cluding that a person who was only a first -time
acquaintance, the plaintiff , would have driven the vehicle while more experienced
drivers remained passengers; that Ms Busisiwe Nkosinaye , who was heavily
pregnant and known to be a driver, did not drive at a ny stage by reason of her
pregnancy, yet was able to occupy the right rear seat throughout the day; and that
three separate women, namely the occupants of the microbus, each mis -observed
the seating arrangements on two occasions, both at Philippi and in Somerset West.
[154] The injuries sustained by the deceased are characteristic of those
typically associated with a front -seat occupant in a right -hand-drive vehicle. They
include a sternal fracture, bilateral rib fractures, bilateral femur fractures, and
extensive right-sided soft-tissue trauma.
[155] By contrast, the plaintiff’s injuries (minor ankle injury and soft -tissue
trauma) are strongly consistent with a rear-seat passenger. No driver specific injuries
were recorded for her. While the defendant’s witnesses emphasised rollover
complexity, they accepted that no injury sustained by the deceased excluded her
from having driven, and several supported that probability.
[156] The plaintiff’s version was consistent from the outset. The defendant’s
supportive statements were made more than three years later, on the same day,
before the same commissioner, and in materially similar handwriting. They were
before the same commissioner, and in materially similar handwriting. They were
produced in the context of RAF enquiries, a circumstance naturally raising questions
about reconstruction. Statements made contemporaneously or close in time to an
event, such as the plaintiff’s family’s observations and the objective hospital and
scene records, carry substantially more weight than delayed accounts.
[157] The plaintiff’s witnesses had no financial interest or alignment in
attributing fault to the deceased. The defendant’s factual witnesses, all close friends
of the deceased and involved in assisting her family with potential RAF claims , had
an inherent emotional alignment which increases the probability of post -event
reconstruction favouring a version that would not prejudice the deceased. The
plaintiff, a stranger to these women, had no discernible motive to misrepresent who
drove.
[158] The plaintiff was unconscious and unable to communicate at the scene
of the incident. It is also noteworthy that t he deceased was gravely injured. Neither
could meaningfully influence the immediate narrative of “who drove.” The only
occupants capable of narrative reconstruction were those who were least injured, the
defendant’s witnesses , all sharing a close relationship with the deceased and
involved in later RAF enquiries. This reduces the inherent probability of their
independent recollection.
[159] When all the objective indicators are considered, including driving
competence, the analysis of injury patterns, the seating observations of three
independent witnesses, the plaintiff’s lifelong inability to drive, the deceased’s
established driving ability, and the inherent improbabilities underpinning the
defendant’s version, the probabilities overwhelmingly favour the plaintiff’s case.
[160] In my view, i t is accordingly far more probable that Ms Busisiwe
Nkosinaye was the driver ; that the plaintiff occupied the right rear passenger seat,
and that the vehicle overturned as a result of negligent loss of control. This
evaluation is undertaken on the basis that, where versions are mutually destructive,
the plaintiff was enjoined to satisfy the Court that her version is more probable than
that advanced by the defendant.
[161] Having summarised the evidence an d examined the legal principles
[161] Having summarised the evidence an d examined the legal principles
applicable to the resolution of factual disputes, it is necessary to evaluate the
evidence holistically. This evaluation must consider the inherent probabilities, the
quality of the respective witnesses, the reliability of t heir versions, the objective
indicators furnished by the medical and biomechanical evidence, and the effect of
procedural deficiencies in the defendant’s conduct of its case.
[162] The plaintiff’s version was consistent in all material respects. From the
outset, she maintained that she was seated in the right rear of the vehicle and that
Ms Busisiwe Nkosinaye was the driver. This account was corroborated by multiple
sources, including her sister, Ms Sitayo, who directly observed the seating
arrangements both in Philippi and in Somerset West; Ms Matshele, an independent
witness with no financial interest in the outcome of the litigation; and the plaintiff’s
husband, who confirmed her lifelong inability to drive. Further corroboration is
provided by the objective injury patterns, which are consistent with a rear -seat
passenger and inconsistent with those typically sustained by a driver.
[163] The plaintiff withstood extensive cross -examination without
contradiction on any central aspect of her version. Notably, the defendant did not
directly challenge her evidence that she was unable to drive in 2012, that she held
neither a learner’s nor a driver’s licence, that she had never driven a motor vehicle at
the relevant time, or that Ms Busisiwe Nkosinaye drove the vehicle on both legs of
the journey. In accordance with the principle articulated in SARFU, such
unchallenged evidence may properly be accepted.
[164] The plaintiff’s credibility was further enhanced by the candour with
which she addressed an affidavit she could not recall, her frank concessions
regarding gaps in memory resulting from periods of unconsciousness, and her
consistency on matters about which she could reasonably be expected to be certain,
namely that she was a passenger and that she could not physically have been the
namely that she was a passenger and that she could not physically have been the
driver. By contrast, the defendant’s version is marked by internal c ontradictions,
unpleaded allegations, improbabilities, and evidence that demonstrates signs of
post-event reconstruction.
[165] Both key witnesses Ms Aphiwe Mbengashe and Ms Nomveliso
Gxamsa only provided statements three years after the accident. Those statements
were made on the same date, in identical handwriting, before the same
commissioner of oaths, and in the context of assisting the deceased’s family in
pursuing claims against the Roa d Accident Fund. These circumstances cast serious
doubt on the independence and reliability of their recollections.
[166] Their respective versions are marked by material contradictions. They
conflict with one another, with their own affidavits, with the pleade d case, with the
objective medical evidence, and with the testimony of neutral witnesses. The
inconsistencies in their evidence extended to the route allegedly taken, the point of
departure, who was collected and where, the lane in which the Ford was trave lling,
who was conscious at the scene, the seating arrangements, and whether a truck
featured in the incident at all. These discrepancies are not minor or peripheral. They
strike at the core of the reliability of their evidence.
[167] Sergeant Fortuin’s evidence was essentially neutral. She was unable to
explain how the plaintiff came to be recorded as the driver in the OAR, nor could she
account for why the deceased, who sustained fatal injuries, was described therein as
having been only “slightly injured”. In these circumstances, the O AR is manifestly
unreliable and cannot be accorded any evidential weight. Nothing in the defendant’s
version explains the deceased’s driver -specific injuries, nor why the plaintiff, alleged
to have been the driver, sustained only a minor ankle injury. Nor does it explain why
two independent women in the microbus mistakenly observed the plaintiff in the rear
seat if she had in fact been driving.
[168] Dr Bhagwan’s evidence suffered from methodological inconsistencies,
reliance on non -scientific sources, the use of an inadmissible “probability scoring
reliance on non -scientific sources, the use of an inadmissible “probability scoring
system”, and a material shift in his conclusions that was not prompted by new
scientific data but rather by factual assertions provided by the Road Accident Fund.
His concessions under cross -examination, particularly that none of the deceased’s
injuries were inconsistent with a driver position, were telling.
[169] On the totality of the evidence, Dr Plaskett’s opinions are
overwhelmingly more persuasive, coherent and supported by objective indicators.
They align with the reliable eyewitness evidence and the inherent probabilities.
[170] The defendant’s case is further weakened by its reliance on facts never
pleaded and never put to the plaintiff’s witnesses. This violates foundational
procedural principles and eliminates any possibility of those alleged facts being
accepted. Delayed statements, especially those bearing the hallmarks of
coordination and produced in the context of a vested interest to shift liability, must be
given reduced weight.
[171] At trial, the defendant sought to advance several factual allegations
that did not form part of its pleaded case, including an alleged stop at Ms Gxamsa’s
home, departure from a car wash, and prior driving experience on the part of the
plaintiff. These allegations were neither pleaded nor put to the plaintiff or her
witnesses in cross -examination. In accordance with settled procedural principles,
they cannot be relied upon in determining the issues in dispute.
Findings on Driver Identity and Negligence
[172] For the reasons already set out when dealing with credibility, reliability,
and probabilities, the Court finds that the plaintiff has proved, on a balance of
probabilities, that she was not the driver of the Ford Ikon at the time of the collision.
The Court accepts the consistent and mutually corroborative evidence of the plaintiff,
Ms Sitayo, and Ms Matshele that the deceased, Ms Busisiwe Nkosinaye, was the
driver throughout the day.
[173] The defendant’s version that the plainti ff was the driver is improbable
and unsupported by objective evidence. It is incompatible with (i) the uncontested
fact that the plaintiff could not drive in 2012, (ii) the objective injury patterns, and (iii)
the contemporaneous and consistent observations of witnesses in the microbus. The
the contemporaneous and consistent observations of witnesses in the microbus. The
defendant’s version depended largely on delayed statements, internal contradictions,
and testimony materially undermined by emotional alignment, post -event
reconstruction, and objective inconsistency.
[174] Having determined that the deceased was the driver, the remaining
issue is whether the plaintiff has established negligence on the part of the deceased.
In claims of this nature, even minimal negligence suffices , and the plaintiff must
show that the insured driver failed to exercise the degree of care expected of a
reasonable driver in the circumstances.
[175] The Court accepts the plaintiff’s evidence that the vehicle lost control
while travelling along the N2, veered to the right, and overturned multiple times,
resulting in the ejection of all occupants. In the absence of any mechanical defect or
plausible explanation consistent with reasonable care, loss of control of a vehicle
culminating in a rollover commonly raises an inference of negligence, particularly
where all occupant s were ejected , a scenario strongly associated with excessive
speed, improper steering input, or inadequate vehicle control.
[176] No credible evidence was presented to establish a sudden,
unavoidable, external cause of the rollover. The defendant’s suggestion of a tyre
burst rests on unreliable, inconsistent testimony and is unsupported by independent
evidence. The probabilities favour the conclusion that the deceased failed to
maintain proper control of the vehicle.
[177] Accordingly, the Court finds tha t the deceased was negligent in failing
to keep the Ford Ikon under proper control and that such negligence caused the
rollover and consequent injuries to the plaintiff.
[178] Even accepting the defendant’s contention that the collision was a
single-vehicle rollover accident, the unexplained loss of control of the vehicle,
resulting in a rollover with the ejection of all occupants, gives rise to a permissible
and compelling inference of negligence on the part of the driver. The defendant is
therefore 100% liable for the plaintiff’s proven or agreed damages.
Causation and Liability
[179] In order to succeed with her claim, the Plaintiff is required to establish,
on a balance of probabilities, that she was a passenger in the insured vehicle, that
the insured driver was negligent, that such negligence caused the collision, and that
she sustained injuries as a result of that negligence.
[180] The first requirement, namely that the plaintiff was a passenger, has
been satisfactorily proved. The defendant did not challenge the plaintiff’s evidence
that she was unable to drive in 2012 and that she did not possess either a learner’s
or a driver’s lice nce at the time. This evidence therefore stands uncontested and, in
accordance with the principle in SARFU, may be accepted. It is further corroborated
by the testimony of two independent eyewitnesses and supported by the objective
medical evidence relating to the plaintiff’s injuries.
[181] The issue of negligence must be determined with reference to the
probabilities. Established authority, recognises that where a vehicle loses control and
overturns in the absence of any credible external cause, an inference o f negligence
is justified. This inference is strengthened in circumstances where occupants were
unrestrained and ejected from the vehicle, an outcome commonly associated with
excessive speed or a failure to maintain proper control.
[182] Although the defendant bore no onus to prove an alternative version,
the plaintiff’s case must be assessed against the totality of the evidence. The
suggestion that a tyre burst caused the rollover is inadequately substantiated and
stems from delayed, inconsistent, and contradic tory accounts. In evaluating the
quality of both the factual and expert evidence, the Court is entitled to prefer the
version that is more coherent, objectively supported, and medically consistent. On
the evidence as a whole, the plaintiff’s explanation th at the rollover resulted from
negligent driving is more probable than the proposition that it was caused by an
negligent driving is more probable than the proposition that it was caused by an
unavoidable mechanical failure.
[183] Consequently, I am satisfied that both factual and legal causation have
been established. But for the deceased’s negligent loss of control of the vehicle, the
rollover would not have occurred, and the occupants would not have been ejected.
The harm that ensued falls squarely within the risk contemplated by the Road
Accident Fund Act. In these circumstances, the negligent loss of control of the
vehicle by the deceased was both a factual and legal cause of the plaintiff’s injuries,
as the rollover and consequent ejection were the direct and fo reseeable
consequences of that negligence.
[184] As regards damages, the contemporaneous clinical records confirm
that the plaintiff sustained orthopaedic and soft tissue injuries consistent with those
of a rear seat passenger who was ejected during a rollover accident. These injuries
were caused directly by the negligent driving of the insured vehicle.
Conclusion
[185] I am therefore satisfied that the Plaintiff has discharged the burden of
proof on a preponderance of the probabilities that she was a passenger and t hat Ms
Busisiwe Nkosinaye was the driver for reasons already provided. In terms of Section
17 (1) (a) and (b) of the Road Accident Fund Act, Act 56 of 1996 as amended, the
RAF has an obligation to compensate a plaintiff (third party) for loss or damages as a
result of injuries sustained due to a motor vehicle accident. It is trite that the plaintiff
is therefore required to prove 1% negligence on the part of the driver to succeed with
her claim as articulated in Prins v Road Accident Fund, 21 where Mojapelo DJP as he
then was stated as follows:
‘It is common cause that a passenger needs only to prove the proverbial 1%
negligence on the part of an insured driver in order to get 100 % of damages that he
is entitled to recover from the Fund.’ 22
[186] For all the reasons previously articulated, the plaintiff has
overwhelmingly met the threshold for the court to conclude that the driver of the
vehicle was negligent in causing the accident. It follows that all the statutory
21 (21261/08) [2013] ZAGPJHC 106.
21 (21261/08) [2013] ZAGPJHC 106.
22 See also Mashego v Road Accident Fund [2023] ZAGPPHC 296; 64934/2019 (4 May 2023) at
paras 16 – 18 &20.
requirements for liability have been met, and the defendant is accordingly liable to
compensate the plaintiff for 100% of her proven damages.
Costs
[187] The question of costs falls to be determined in the exercise of the
Court’s discretion. The plaintiff has been substantially successful on the merits and is
entitled to her costs.
[188] The matter was protracted and involved the resolution of sharply
conflicting factual versions, extensive credibility findings, and the evaluation of expert
medical evidence. It was accordingly more demanding than an ordinary personal
injury trial. At the same time, the issues were neither novel nor of such an
exceptional nature as to warrant a deviation to the highest costs scale. The matter
involved the application of settled legal principles to a complex factual matrix.
[189] Having regard to the nature and complexity of the proceedings, the
manner in which the case was conducted, and considerations of proportionality, I am
satisfied that a costs order on the party -and-party scale is appropriate , and for
purposes of Rule 67A read with Rule 69, such costs shal l be on Scale B. This scale
adequately reflects the complexity of the matter without overstating it.
[190] There is no basis for depriving the plaintiff of any portion of her costs,
nor for awarding costs on any higher scale.
Order
[191] In the result:
a) The defendant is declared liable to compensate the plaintiff for 100% of
her proven or agreed damages arising from the motor vehicle collision
which occurred on 28 January 2012 on the N2 near Macassar.
b) The defendant is ordered to pay the plaintiff’s costs of suit to date, such
costs to be taxed or agreed on the party-and-party scale, on Scale B.
c) The issue of quantum is postponed sine die.
_________________________
P D ANDREWS AJ
Acting Judge of the High Court
APPEARANCES:
Counsel for the Plaintiff: Advocate A J Du Toit
Instructed by: DSC Attorneys
Counsel for the Defendant: Advocate M Davis
Instructed by: State Attorney
Attorney briefed: Ms M Mothilal
This judgment was handed down electronically by circulation to the parties’
representatives by email.