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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
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
CASE NO. A41/2025
COURT A QUO CASE NO. 2760/2020
(1) REPORTABLE: NO/YES
(2) OF INTEREST TO OTHER JUDGES: NO/YES
(3) REVISED
DATE 30/04/2026
SIGNATURE.
In the matter between:
DUDUZILE JOHANNA SHONGWE APPELLANT
And
ROAD ACCIDENT FUND RESPONDENT
This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date and time of hand -down is deemed to be 30
April 2026
______________________________________________________________________
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JUDGMENT
This appeal was before the full court of this Division and this is the majority
judgment, our brother Phahlamohlaka J having decided to write a dissenting
judgment that appears hereunder.
Bam, AJ, et Mankge J concurring (Phahlamohlaka J dissenting)
[1] On 9 December 2024, the court a quo dismissed the appellant’s action
against the Respondent with costs on a party and party scale. The appellant
had instituted a delictual damages claim against the Road Accident Fund (“the
RAF”) in terms of Section 17(1) of the Road Accident Fund Act 56 of 1996;
which provides for compensation to a claimant injured in a motor vehicle
accident caused by the negligence of the driver or owner thereof. Separation
of issues in terms of Rule 33 (4) was granted and only the merits were to be
adjudicated.
[2] The court a quo dismissed the action, based on its finding that the appellant
had failed to prove negligence on the part of the insured driver and thus no
liability could attach to the RAF. The court found that she had placed three
different versions before it regarding how the accident happened; which made
it difficult to reconcile her testimony with other available evidence such as the
sketch on the accident report and the physical damage to her own vehicle.
The Appeal serves before this full court with the leave of the court a quo.
[3] The crux of the appellant’s argument is that the court a quo erred and
misdirected itself in finding that the appellant failed to prove negligence and
that the damage to her vehicle was inconsistent with the alleged rear-ending
impact described by the appellant. Her case was premised on the maxim res
ipsa loquitur
[4] In the heads of argument , the plaintiff’s counsel, Advocate Tsh avhungwe,
submits that the appellant’s testimony of how the accident happened which is
also corroborated in her section 19(f) affidavit as well as by the accident
report, is uncontroverted. The respondent had led no evidence and did not
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challenge the appellant’s version in cross -examination. In view of this, the
court ought to have accepted the appellant’s evidence as correct and ruled
100 percent in her favour on the merits.
THE RECORD
[5] On page 2 of the accident report ,1 there is a sketch and a brief description of
the accident. The appellant is described therein as Driver B while the insured
driver is Driver A , and their vehicles depicted on the ske tch as “B” and “A”
respectively. The narrative reads:
“Driver A alleges that he was driving straight out of town, the traffic light was
green for him. Then Driver B make a turn in front of him.
Driver B alleges that she was turning on her left-hand side, then she heard a
big bag (bang). Her vehicle span (spun) around.
Both vehicles got damaged.”
[6] The Particulars of Claim in paragraph 4 describe the accident as follows:
“On or about the 24 th May 2018 at or near CNR Church and Camden Lane
road Ermelo, the plaintiff was a driver of a motor vehicle with registration
number and letters D[...] 3[...] M[...] when turning to the left collided with motor
vehicle with registration letters and numbers J[...] 3[...] M[...] there and then
driven by Mazibuko Progress Vusi.”
[7] The appellant also signed a warning statement in connection with an
investigation concerning a suspected offence of Reckless Driving under case
reference: Ermelo Case No. 313/05/2018 . She chose to make a statement
after being advised of her rights. According to the statement , on the date of
the accident she was parked next to the road and when she decided to rejoin
the road “ I checked on the mirror for coming traffic in the back and front. I
discovered that there was no vehicle coming at the back. I drove towards the
road. Suddenly I hear a big bang on my vehicle. My vehicle started spinning
around the road for many time until it stop in the road……… and my vehicle
was damage around on the sides…..” This statement is the Exhibit B which in
1 Caselines 078-14
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paragraph 6 of the judgment, the court a quo described as “her police warning
statement for reckless and negligent driving charges that were under
investigation at the time .” She was asked by her counsel to confirm whether
the contents of the statement were true and correct, and she said “ yes”.
Further that she stated that “suddenly I hear a big bang on my vehicle .”2 She
was thus examined on the contents of the accident report and the warning
statement which were both subsequently admitted into evidence by the court
a quo.
[8] When Advocate Tshavhungw e asked the appellant to describe how the
accident happened during examination, she testified that she had pulled off
the road to change her shoes as the ones she was wearing were making her
uncomfortable. She continued:
“Then after doing that My Lord, for me to move back to the road, I checked on
my mirrors and then it was safe. It is then I moved back to the road. So just
when I was driving, I heard big ban g on the car from behind. So after
they…….. the car was spinning around on the road several times My Lord.
And it also came to a standstill right in the middle of the road”.
[9] She described the road surface as tarred; the road itself straight and flat with
clear signage. According to her observation it is a busy road. But she could
see clearly ahead for two blocks. She remembered having made a statement
to the police, the contents of which she also confirmed.
THE JUDGMENT
[10] The court a quo in its judgment of the main action, made the following
findings:
“[27] It is incorrect that the plaintiff's evidence was consistent, as she had
three different versions that were all under oath; they are not corroborated and
the discrepancy was never cleared. Although she alleged that the road had
one lane going in each direction at the point of impact, the sketch plan in the
accident report does not support her evidence, as it reflected that the road
2 See Case lines pages 078-134 to 136
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had two lanes in the direction she was travelling, and her vehicle came to a
standstill in the second lane on the left. In her own version, the plaintiff has
contributed to the cause of the accident, if not the sole cause.”
“[28] The onus is on the plaintiff to prove negligence on the part of the insured
driver. In her version in court, she collided with a motor vehicle that was
travelling in the same direction as her, whilst in the process of rejoining the
traffic. Surely, she had a duty to first ensure that it was safe to do so, which
was not the case, as she could not explain where the vehicle came from. This
version is inconsistent with the damage on her vehicle, which is on the side,
not at the back. The only logical concl usion is that she did not keep a proper
lookout to ensure that it was safe to rejoin the flow of traffic. ” (emphasis
added).
[11] It is noteworthy that although the court had hinted at a possible contributory
negligence, in the end it was convinced that the appellant had been solely
responsible for the accident, hence its dismissal of the claim.
[12] In its judgment on the application for leave to appeal, the court a quo
reiterated its stance and the correctness of its findings which resulted in the
dismissal of the appellant’s claim. In paragraph 9 of that judgment, it held that:
“The applicant failed to put before the court a case that is consistent with her
pleadings and failed to give any reason for such an action. It is an established
principle of our law that party stands or falls by its pleadings, which is not the
case here”.
[13] However, in paragraph 14, the court a quo mentions the fact that it failed to
follow the four steps in M S v Road Accident Fund [2019] 3 A11 SA 474(SCA)
and that this justified the granting of leave to appeal. The court’s concession is
however, even then, made begrudgingly because it states that the matter had
been “sufficiently considered”.
ARGUMENT
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[14] In his heads of argument, Mr Tshavhungwe maintained that in the absence of
any evidence to contradict the appellant’s version , or of an alternative
explanation from the defendant, the court should have accepted the
appellant's evidence. He insists that the appellant’s vehicle was hit from
behind (rear -ended) by the insured vehicle and thus res ipsa loquitur . He ,
however, does not address the question raised by the court regarding the
reported damage on the body of the appellant’s vehicle, namely the left rear,
right front and right mid -front. It was not the appellant’s case that there were
multiple impacts between the vehicles or that her vehicle hit anything else
while spinning. She testified about one bang which caused her vehicle to spin
several times. That is the reason why the court rejected the application of the
res ipsa loquitor principle, correctly so in my view.
[15] The respondent’s pleaded case, at the outset, is that the appellant was solely
negligent for the accident. However, as is normally the practice, it also
pleaded contributory negligence, and “sudden emergency” in the alternative.
Amongst other aspects of negligence pleaded is that the appellant failed to
keep a proper lookout and to take adequate steps to avoid the accident
through the exercise of reasonable care and diligence.
[16] In his heads of argument , counsel for the respondent , Advocate Magagula,
notes that the appellant , in her section 19(f) affidavit, did not mention that her
vehicle was rear -ended. She says that she just heard a big bang when she
was turning left. This corroborates her version in the accident report that she
was turning left. The statement of the insured driver also mentions that she
turned in front of his vehicle. These versions differ with her warning statement
to the police as well as her testimony before court. Counsel submitted that the
appellant’s versions were mutually exclusive, irreconcilable, and ought to be
rejected.
appellant’s versions were mutually exclusive, irreconcilable, and ought to be
rejected.
[17] Section 17(1)(a) of the Superior Court Act No. 10 of 2013 provides that:
(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that:-
(a) (i) the appeal would have a reasonable prospect of success; or
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(ii) there is some other compelling reason why the appeal should
be heard, including conflicting judgments on the matter under
consideration;
[18] The issue for determination before the court a quo was that of merits as they
pertain to liability. It was whether the insured driver was negligent and if so,
whether his negligence caused the accident . In the case of MEC for Health,
Gauteng v de Lange [2024] ZASCA 38 , the court clarified the concept of
“merits” as it applies to negligence and to causation. In paragraph 14 the court
stated that:
“The difficulty arose in this matter because the parties and trial court
did not observe the cautionar y words of Nugent JA in Denel. He
explained why that was the case in Bernert: ‘In some cases it might be
appropriate to order the separation of the merits and the quantum of
the claim. But to use that termino logy when the causative link between
the wrongful act and the damage is a contested element of the claim,
as it was in this case, is bound to create uncertainty.’ That is clearly
what happened in this matter.”
[19] The court continues in paragraph 15 to say:
“In summary, the ‘liability’ determination was restricted to establishing if
the defendant’s negligence caused the death itself . It did not exten d to
causation of the various damages allegedly flowing from that death ,
such as loss of support, medical costs, or emotional trauma . …..” (own
emphasis)
[20] I cite the above case in a bid to demonstrate the error made by the court a
quo, which despite a clear and well-reasoned finding on liability, misdirected
itself by referring to issues pertaining to causation . The court in M S v Road
Accident Fund supra, per Fischer J , stated that the enquiry into delictual
claims against the RAF should ideally follow a four-step inquiry:
1. Did the negligence of the third-party driver cause the accident?
2. Did the plaintiff sustain the pleaded injuries in the accident?
3. How have these proven injuries affected the plaintiff?
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4. How should the plaintiff be remunerated?
[21] The learned Judge continued to explain that the first step is concerned with
the establishment of negligence, that is , finding out who is to blame for the
accident. At this stage it might be that both the insured driver and the claimant
are to blame in differing degrees; hence a finding of contributory negligence
might result. The other steps are concerned with causation – proof of injuries,
effect of injuries , and compensation based on th at effect. The second and
third steps relate to legal causation which, once proven, will lead to the fourth
step regarding compensation.
[22] The appellant’s argument that the court a quo failed to apply the four -step
inquiry therefore is to be rejected. This is for the simple reason that o n the
date of trial, it was made clear to the court that the issue to be adjudicated
was the one pertaining to liability, and that was the only issue on which
evidence was presented before court.
[23] In the appellant’s own words, she was turning left or joining the road when
“suddenly” she heard a big bang as her vehicle was hit . Irrespective of
whether her vehicle was rear -ended or side -swept, or even T -boned, the fact
that the collision happened as soon as she joined the road or executed the left
turn, is indicative of the fact that she did not check for traffic before entering
the lane or turning. She struggled to give an estimation of how long or how far
she had been inside the road when the collision occurred, telling the court that
she is not good with estimations . It is highly probable that she was in fact
turning left because this is what she allegedly told the police officer who
completed the accident report at a time when the incident was still fresh in her
mind. That a criminal investigation was instituted concerning her driving lends
credence to the respondent’s argument that she was suspected of having
caused the accident. Secondly, the fact that she was not charged with or
caused the accident. Secondly, the fact that she was not charged with or
convicted of reckless driving at the end of the investigation is neither here nor
there.
[24] In conclusion, the appellant has failed to satisfy this court that the court a quo
erred or misdirected itself in dealing with the evidence concerning liability. The
principle of res ipsa l oquitur, the crux of which is circumstantial inference,
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does not mean that rear -ending another vehicle is always the fault of the rear
driver. There are key exceptions such as sudden and unexpected stopping by
the front driver, chain reaction crashes, malfunctioning brake lights or
indicators, hazardous road conditions or obstructions, extreme weather
conditions, and front driver’s reckless or illegal actions. [(See RAF v
Mehlomakulu 2009 (5) SA 390 (E)].
[25] Whether the appellant was joining the road or making a left turn, she failed to
keep a proper lookout, and her statements that she checked her mirrors
before venturing into the road appear to be an afterthought. As the court a quo
noted, her story appeared to change as she went along. In response to my
Sister Mankge J ’s observation regarding the inconsistencies between the
contents of her section 19(f) affidavit and the appellant’s testimony in court, Mr
Tshavhungwe insisted that whether his client was turning left or joining the
road is not relevant as she has premised her case on the principle of res ipsa
loquitur.
[25] In addressing Mr Tshavhungwe’s contention regarding the absence of
evidence from the defendant, it is my considered view that the appellant , on
her own , failed to place credible evidence before the court a quo and thus
failed to discharge the onus resting upon her to prove her case on a balance
of probabilit ies. Even if the contents of the accident report and the warning
statement were to be ignored, as her counsel now says they do not constitute
evidence, the appellant’s own evidence given under oath points to her
negligence, making it unnecessary for the defendant to give any contradicting
evidence or explanation under the circumstances. Thus, even if this case was
heard in default of the respondent’s appearance, it is my considered view that
the court would have made the same findings, hence I believe the order is
correct and should not be interfered with by this court . The appeal cannot
succeed.
COSTS
correct and should not be interfered with by this court . The appeal cannot
succeed.
COSTS
[26] When it comes to the issue of costs, this court is aware that the judgment of
the court a quo, when dismissing the appellant’s claim, included a costs order.
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It is my considered view that the application for leave to appeal should have
been refused considering the court a quo ’s findings. The dismissal of this
appeal means that the order of the court a quo takes effect and I do not
believe it will be in the interest of justice for the appellant to be further mulcted
with costs.
[27] In the result, the following order is made:
1. The appeal is dismissed.
2. There is no order as to costs.
___________________
L J BAM
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION (MIDDELBURG)
I agree, and it is so ordered
____________________
M T MANKGE
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION (MIDDELBURG)
APPEARANCES:
FOR THE APPLICANT: ADVOCATE P. TSHAVHUNGWE
FIRM: NKGADIMA & ASSOCIATES ATTORNEYS
MIDDELBURG
CONTACT DETAILS 013 – 243 5902
raf@nkgadimaattorneys.co.za
FOR THE RESPONDENT: ADV. P L MAGAGULA
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INSRTUCTED BY: THE STATE ATTORNEY
MBOMBELA
CONTACT DETAILS 066 308 9179 / andanin@raf.co.za
DATE OF HEARING: 24 November 2025
DATE OF JUDGMENT: 30 April 2026
Phahlamohlaka J
I have read the main judgment of my sister Bam J, and I respectfully do not agree
with the reasoning and the order. Hereunder is my dissenting judgment.
[1] This is an appeal against the whole of the judgment and order of the court a quo,
which dismissed the Appellant’s claim with costs.
[2] The appeal concerns the merits only, arising from a motor vehicle collision that
occurred on 24 March 2018.
[3] The central issue on appeal is whether the court a quo erred in finding that the
Appellant failed to discharge the onus of proving negligence on the part of the
[4] It is common cause that the Appellant was the driver of a motor vehicle that was
involved in a collision with a motor vehicle insured by the Respondent. The
Appellant’s version, in essence, is that:
4.1 She had pulled her vehicle to the side of the road;
4.2 Thereafter re -entered the roadway; and
4.3 Was struck from the rear by the insured driver.
[5] The Respondent did not call the insured driver or any witnesses to rebut the
Appellant’s version.
[6] The appellant raises a number of grounds which are prolix in nature and therefore
I am not intending to deal with each ground individually. However, the main
complaint is that the court a quo erred in rejecting the evidence of the appellant in its
totality, although the defendant proffered no evidence at all.
[7] The issues for determination in this appeal are essentially whether the court a
quo misdirected itself by finding that the appellant failed to discharge the onus of
proving its case on the balance of probabilities.
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[8] The court a quo found contradictions in the appellant’s version. The question is
whether the court a quo was correct in finding that those contradictions are so
material to justify the rejection of the Appellant’s version in its totality.
[9] Whether the court a quo misdirected itself in its evaluation of the evidence.
[10] It is trite that a court must evaluate evidence holistically, having regard to
credibility, reliability and probabilities. The court a quo correctly found that there were
contradictions in the evidence of the plaintiff. However, contradictions in a witness’s
evidence do not necessarily justify rejection of the entire testimony, particularly
where such contradictions are not material to the core issue.
[11] It is a well -established principle of our law that the appeal court can only
interfere with the trial court’s finding of fact under exceptional circumstances. This
principle was stressed by the Supreme Court of Appeal in HAL obo MML v MEC for
Health, Free State3, where the court held as follows:
‘The presumption is that a trial courts factual findings are correct in the absence of
demonstrable error. To overcome this presumption, an appellant must convince the
appellate court on adequate grounds that the trial court’s factual findings are plainly
wrong. If the appellant court is merely left doubt as to the correctness of effectual
findings, then it will uphold that finding. It is only in exceptional circumstances that an
appellate court will interfere with a child's evaluation of oral evidence, in the light of
the advantages enjoyed by the town quarter of seeing, hearing and appraising the
witness. See Sanlam Bpk v Biddulph 2004 (5) SA 586 (SCA) para 5; Roux v Hattingh
[ 2012] ZASCA 132; 2012 (6) SA 428 (SCA) para 12.”
[12] The court a quo summarised the appellant’s uncontroverted oral testimony as
follows4:
“The plaintiff gave evidence that could be summarized as follows. On 24 May 2018,
follows4:
“The plaintiff gave evidence that could be summarized as follows. On 24 May 2018,
she was traveling along Church street and stopped on the side of the road after
crossing over the traffic light -controlled intersection with Camden Lane to change
into comfortable shoes. Once done, she checked her rear -view mirror before
entering the roadway to ensure that there were no motor vehicles traveling in the
same direction. After ensuring that it was clear, she entered the roadway, only to
hear a huge bang as someone collided with her motor vehicle from the rear side. Her
motor vehicle spun around and ended up on the right -hand side of the road, facing
the direction she was coming from. She further stated that the speed limit in the area
was 60 kilometers per hour as it was built up area. At the time of the accident from
which she was travelling at 60 kilometers per hour. The road surface was tarmac,
with a single lane in each direction, separated by the broken line. Another lane
merged with the side she was travelling in from the left, making it tw o lanes . The
road surface was dry, flat, straight and free of potholes. She could see far in each
direction. She denied executing a u-turn, stating that she was traveling straight.”
3 (Case no 1021/2019) [2021] ZASCA 149 (22 October 2021) at para 72
4 Caselines 045-2 para [5] of the judgment
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[13] The court a quo accepted a warning statement that the appellant made to the
police when a case of negligent driving was investigated against her. The warning
statement was accepted by the court a quo without the police officer who took the
warning statement being called to testify. Based on the contradictions in the warning
statement, the statement by the appellant in terms of section 19(f) of the Road
Accident Fund Act 5 as well as the oral evidence she gave in court, the court a quo
found that the appellant gave three versions of how the accident occurred and thus
dismissed her claim on that basis.
[14] I have difficulty with the manner in which the warning statement was accepted
by the court a quo as an exhibit. The court did this mero motu without application
from either of the parties. The following engagements appear from the record leading
to the court a quo admitting the warning statement as an exhibit6:
“Court: Ms Nefolovhodwe. And then what happens with the documents that you have
been using?
Mr Tshavhungwa: M’Lord I do not think that it will be necessary for them to be
handed in as exhibits as they are contained in the index and paginated documents
M’Lord.
Court: Since when does it operate like that? Because exhibits are they the same
thing?”
[15] In my view the court a quo misdirected itself by accepting the warning statement
as an exhibit although the appellant made it clear that they did not want to hand up
the statement as an exhibit. Worse, the warning statement was used as a catalyst to
reject the appellant’s version. The court a quo ought not to have accepted the
exhibits without application from any of the parties. In essence the court a quo
assisted the respondent to the prejudice of the appellant.
[16] Absent the exhibits that the court a quo accepted without any application, the
only evidence available is that of the appellant.
[17] In my view, the evidence of the appellant, albeit with some contradictions, is not
[17] In my view, the evidence of the appellant, albeit with some contradictions, is not
controverted. In the absence of any evidence to gainsay the evidence of the
appellant, the court a quo misdirected itself by rejecting it.
[18] The Respondent’s failure to call the insured driver is a significant factor in the
evaluation of probabilities. In the absence of any evidence for the defendant the
court is confronted only with the evidence of the appellant. I am mindful of the fact
that the onus does not shift because the defendant has not presented any evidence.
Still, it is the duty of the appellant to discharge its onus of proving that the accident
occurred as a result of the negligent driving of the insured driver.
5 Act 56 of 1996
6 Caseline 078-137
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[19] Applying the res ipsa loquitur maxim, it is my considered view that had it not
been for the negligence of the insured driver , the accident could not have occurred.
The only evidence regarding how the accident occurred is that of the appellant.
[20] Considering the evidence presented in the court a quo by the appellant, which is
uncontroverted, it is my considered view that the court a quo erred by not accepting
the version put forth by the plaintiff. Consequently, the appeal must succeed.
[21] In the result I would propose the following order:
(a) The appeal is upheld with costs including costs of counsel to be taxed on scale B.
(b) The order of the court a quo is set aside and replaced with the following:
“1. The defendant is ordered to pay 100% of the plaintiff’s proved or agreed
damages arising from a motor vehicle accident that occurred on 24 March 2018.
2. The defendant is ordered to pay costs including costs of counsel to be taxed on
scale B.”
Judge of the High Court