IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION, (MIDDELBURG LOCAL SEAT)
DELETE WHICHEVER IS NOT APPLICAB LE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
04 MAY2026
DATE
In the matter between:
i
H.F. FOURIE
SIGNATURE
MASANGO CHARMAIN JABULILE
and
ROAD ACCIDENT FUND
JUDGMENT
CASE NUMBER: 2020-021901
PLAINTIFF
DEFENDANT
FOURIE AJ
INTRODUCTION:
(1] The Plaintiff claims damages from the Defendant resulting from a motor
vehicle collision that occurred at a time when the Plaintiff was a pedestrian.
Both merits and quantum remain in dispute, and the issue pertaining to
general damages, at the request of both parties, stands over to be adjudicated
at a later stage.
BACKGROUND:
[2] It is common cause that the Plaintiff, a major female, was involved in a motor
vehicle accident on 27 June 2024. At the time of the collision, it is largely
accepted that the Plaintiff, walking on the right~hand side of the road,
attempted to avoid a puddle of water directly in front of her and by doing so
suddenly took a step further into the road at which time a vehicle traveling from
behind the Plaintiff collided with the Plaintiff, causing the Plaintiff to sustain
injuries, specifically to her left angle.
EVIDENCE ON MERITS:
(3) Al the commencement of the trial, the Plaintiff applied in terms of Rule 38(2)
of the Uniform Rules of Court, to adduce the evidence of the Plaintiffs experts
by way of affidavit. The application was not opposed, and the Court was
satisfied, under the circumstances, that the experts' evidence could be led in
that manner.
[4] The Plaintiff was, however, not excused from leading evidence, and was the
only witness to lead viva voce evidence when the matter was called.
(5] The Plaintiff testified that on the day in question, she approached, as a
pedestrian, the entrance to a park, the entrance of which at the gate thereof
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was not accessible due to water corning out by the gate. The Plaintiff testified
that she looked over her shoulder and ahead and saw no vehicles
approaching immediately, and decided to step into the road to avoid the
puddle she faced.
[6] At the place where the Plaintiff was walking, she testified that there are no
yellow lanes and that, in an emergency, a pedestrian would need to shift onto
the gravel portion next to the road.
[7] The Plaintiff testified that she took one large step into the road to her left, which
she estimated at approximately 1 meter. The Plaintiff testified that, while
looking over her left shoulder, she saw a vehicle approaching, but she
believed it did not pose any immediate threat to her or the manoeuvre she was
undertaking. The Plaintiff testified that the vehicle did not warn her of its
approach or flash its lights.
[8] During cross"exarnination, although the Plaintiff's version remained largely
aligned, certain crucial concessions were made.
[9) The Plaintiff conceded that she wanted to avoid the water in front of her and
that such a manoeuvre caused her to enter into the road on which vehicles
were travelling.
[1 OJ The Plaintiff conceded that ii was, upon her presence in the road, that the
vehicle collided with her. The Plaintiff conceded that a pedestrian has a
continuing responsibility to look out for oncoming traffic when entering a road
and not to enter the road unless it is safe to do so.
[11] Crucially, the Plaintiff conceded that her move was quick and sudden and was
made unexpectedly to avoid getting wet.
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[12] The Plaintiff conceded that she gave no signal to oncoming or following
vehicles prior to executing her manoeuvre by stepping onto the road,
[13] The Plaintiff further conceded that had it not been for her stepping into the
road, she would not have been hit.
[14] When asked why the Plaintiff did not simply wait for traffic to pass before
executing the manoeuvre by stepping into the road, the Plaintiff testified that
she thought she could execute the manoeuvre by stepping into the road, then
quickly out of the road again, prior to any danger corning into existence.
(15] The Plaintiff concluded her testimony by stating that the only way in which she
could avoid the accident was by continuing to walk straight through the water.
[16] The Defendant led no evidence in respect of the merits, and as such, the Court
has not been confronted with any conflicting or mutually destructive facts to
consider.
[17] Interestingly, when the Plaintiff led evidence, the Plaintiffs evidence was
curtailed to address the Plaintiffs actions. The Plaintiffs evidence did not
address the alleged negligence of the insured driver. During argument,
counsel appearing for the Plaintiff requested the Court to make certain
inferences from the statements made by the Plaintiff during her examination.
[18] Although the Defendant did not lead any rebutting evidence, the evidence led
by t11e Plaintiff herself, and specifically the concessions she made, places the
Court in a suitable position to know exactly how the accident occurred and
which party ought to be regarded as negligent.
(19] The fact that the Defendant elected not to lead evidence on the merits of the
matter does not absolve the Plaintiff of the burden of proving its case on the
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balance of probabilities, nor does it lead to an automatic finding of sole
negligence on the part of the insured driver.
[20] It is reasonable for a Court to either dismiss a Plaintiffs claim if it is justified,
or alternatively to apportion negligence towards a Plaintiff and a Defendant,
even in the absence of a Defendant leading any evidence, if it is appropriate
to do so on the evidence as presented by the Plaintiff.
LEGAL PRINCIPLES - MERITS:
[21] The Defendant bore the onus to prove negligence on the part of the insured
driver.
[22) Whilst it is true that the Defendant bears the onus to prove that the Plaintiff
contributed to the causing of the collision, nothing precludes the Defendant
from relying on the evidence of the Plaintiff in order to meet such an onus.
[23] Generally, pedestrians ought not to be present on road surfaces used by
motorised traffic. It should be generally accepted that a pedestrian entering
011to a road surface utilised by motorised traffic is placing themselves in an
unnatural position where they ought not generally be. Road surfaces used for
motorised traffic ought to be reserved for their intended purpose, and any
pedestrian who, for whatever reason, enters the road surface should do so
firstly with a11 understandi11g that the manoeuvre they are u11de1iaki11g is one
that is inherently dangerous, and secondly, should be one only executed when
it is completely safe to do so.
[24) Pedestrians wanting to cross a road serviced by motorised traffic should do
so when it is completely safe to do so, and further should execute such
manoeuvres at designated places desig11ed to facilitate the crossing of such
roads.
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[25] It is so that pedestrians form part of a large number of road traffic accidents in
our country, in part because drivers of motor vehicles do not keep a proper
lookout or act in the many ways negligently or even recklessly, but in part it is
also because pedestrians do not apply caution and care when entering road
surfaces, and crossing roads at inopporiune times and places.
[26) A pedestrian who intends to cross a road should do so at an opportune
moment, and he must exercise reasonable care. He must use his senses to
asceriain whether any motor vehicles are approaching. He should keep a
proper lookout; he should acquaint himself with the vicinity, and scan the road
so as to asceriain whether any motor vehicle on the road may be an actual or
potential risk to his safety. Usually, a pedestrian will look to the left and to the
right before entering the road. Once he reaches the centre of the road, he
should devote his attention to motor vehicles approaching from his left.[1]
[27] It is however not only the duly of a pedestrian to ensure his own safety when
walking on or next to a road. A driver is required to exercise reasonable care
and vigilance, not only towards a pedestrian he sees or ought reasonably to
see on or near the road, he is obliged to exercise the same reasonable care
and vigilance towards an unseen pedestrian whose presence he should
reasonably foresee or anticipate, because, for example, of the proximity of a
school or of a passenger bus.[2]
[28] A motorist who sees a pedestrian on the roadway or about to venture thereon
should regulate his driving so as to avoid an accident. A pedestrian may by
his conduct convey to the motorist the impression that he recognises and
intends to respect the motorist's right of way. When such an impression is
conveyed by the pedestrian, the motorist may proceed on his way accordingly.
Whether the motorist is reasonably entitled to assume or infer from the
conduct of the pedestrian that his right of way is being recognised and
conduct of the pedestrian that his right of way is being recognised and
respected is a question of fact to be decided in each case. .. ..... when the
assumption is not justified, the motorist must regulate his driving to allow for
the possibility that his vehicle may not enjoy an unabstracted passage. Where
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a pedestrian reacts appropriately to the presence of the approaching vehicle,
the credit enquiry is whether a reasonable motorist would foresee the
reasonable possibility that the pedestrian might nonetheless act irrationally by
moving, perhaps suddenly into the vehicle or its path. That possibility exists
for young children, for adults who are plainly drunk, and may arise in other
cases. [3]
[29] In Manual supra the Court, confronted with a pedestrian who suddenly
hopped into the road ordered the pedestrian to be 75% negligent and the
motorist which ought to have kept a better look out and who ought to have
foreseen ceIiain possibilities, was held to be 25% negligent.
[30] The Plaintiff concedes that her actions were sudden, unforeseen, and that, if
she did not take such actions, the accident in all likelihood would not have
occurred.
[31] The only doubt that was raised, and which was not rebutted by the Defendant,
was the place of the accident, which, on the uncontested evidence before the
Court, would not have been in the insured driver's line of travel but seemingly
somewhere on the opposite lane of travel. The Court can also not absolve a
driver, in this instance the insured driver, who, on the evidence available to
Court, would have no difficulty observing the Plaintiff as a pedestrian next to
the road under circumstances where the Plaintiff could observe the insured
vehicle. The driver of the insured vehicle has an obligation to keep a proper
lookout and to account for the fact that, while driving and executing any
manoeuvre, the insured driver might be taking steps that pedestrians next to
the road might take.
(32] It can, however, never be stated that the insured driver was the sole cause of
the collision, nor could it be stated that the insured driver was the primary
cause of the collision. The concessions made by the Plaintiff simply do not
support such an inference being made.
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[33] The only inference that can be made is that the Plaintiff was negligent in
entering the road service at an inopportune time and manner, which was the
cause of the accident. The Plaintiff's negligence does, however, not absolve
the insured driver from keeping a proper lookout.
[34] Under the circumstances, this Cou1i finds that the Plaintiff, as the pedestrian,
was 80% negligent in causing the incident at hand, and the insured driver was
20% negligent.
EVIDENCE ON QUANTUM:
[35] The Plaintiff elected not to lead any personal evidence regarding the quantum
she is claiming. The Plaintiff persisted with the evidence of the experts who
filed reports on her behalf. As stated, the Defendant did not file any opposing
expert repo1ts.
[36] The Plaintiff did, however, testify, and it was ordered in the expert reports that
she sustained a fractured left ankle in the accident.
[37] It has not been disputed that the Plaintiff has indeed been injured in a motor
vehicle accident. It remains to be determined whether the injury sustained led
to a diminishment in the earning capacity of the Plaintiff.
[38] At the time of the accident, the Plaintiff was approximately 26 years old.
[39] The Plaintiff, at that stage, was in the process of completing an ABET Level 4
qualification, which the Court is advised is equivalent to a Grade 9 education.
It is impo1iant to note that the Plaintiff completed the ABET Level 4
qualification after the accident.
[40] Since the completion of the ABET Level 4 qualification, the Plaintiff has not
enrolled or participated in any further studies. The educational psychologist's
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report filed on the part of the Plaintiff indicates the reason for the aforesaid to
be partially because of the motor vehicle accident, but also as a result of
financial constraints.
[41] From the expert reports filed, it is evident that the accident had some impact
on the Plaintiff, but that there were certain emotional and financial struggles
prior to the accident.
[42] Prior to the accident, the Plaintiff was employed as a cook at Fat Cake City
from 2021 until 2022, when the Plaintiff resigned. The Industrial Psychologist
makes mention of the fact that certain collateral information was requested
from the Plaintiff, which was not provided by the Plaintiff to the Industrial
Psychologist.
[43] The Industrial Psychologist suggests that, had it not been for t11e accident, the
Plaintiff would have completed her ABET Level 4, which is equivalent to
Grade 9 in 2024. The Industrial Psychologist then suggests that the Plaintiff
would have completed her NQF Level 6 qualification within her chosen field
by 2026. In respect of the NQF Level 6 qualification, it is noteworthy that the
Industrial Psychologist seemingly misapprehends that the Plaintiff needed,
within that timeframe, to secure Grade 10, Grade 11, Grade 12, and a Higher
Certificate before obtaining the NQF Level 6 qualification.
[44] The expert reports all indicate that the Plaintiffs ability to pursue her studies
remains limited after the accident. The expe1is, however, do not provide
sufficient reasons for this. The Plaintiff would have been the person who is
in the best possible position to explain to the Court why she has not been able
to proceed with her studies, to explain in what way the accident has affected
her, and in what way the accident has affected her career path.
[45] This Court has already found that the Galante Principle ought to be extended
to Road Accident Fund matters. [4)
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[46) During the argument, counsel appearing for the Plaintiff conceded that a
broken ankle sustained when the Plaintiff was 26 years old would not justify a
total diminishment of earning capacity for the Plaintiff for the remainder of her
life.
[47) All the expert reports filed indicate that the Plaintiff wished to pursue a career
in business or in a corporate sphere. The Plaintiff failed to address both in
their expert reports as well as in their election not to lead evidence to indicate
why this would not still be possible after the accident.
[48) Although the Court accepts that a diminishment in the earning capacity of the
Plaintiff has occurred due to the injury sustained in the accident, the current
matter is one where significantly higher than normal contingencies ought to be
applied.
[49) I am in agreement with the Defence Counsel that a higher contingency should
be allowed than the normal contingency deductions, as was prayed for by the
Plaintiff. I am not convinced that the Plaintiffs lack of progress in her career
is solely a result of the accident. The fact that the Plaintiff at the time of the
accident was already 26 years of age, and completing Grade 9, or its
equivalent, is indicative of certain external effects that need to be taken into
consideration by this Court on whether the Plaintiff would have ultimately
succeeded in her journey as anticipated had the accident not occurred.
Further to the aforesaid, the Plaintiff is young and, if the expert reports are to
be believed, remains motivated and is in all likelihood capable of finding
employment that would overcome any physical deficiencies she might retain
after the accident. Nothing in the expert reports indicates that the Plaintiff is
not capable of being employed and earning a proper living.
[50) The contingencies the Couri applies are utilised to seek to find a balance
between damages sustained, the possibility that, had the accident not
occurred, certain income would have been generated, and the possibility that,
occurred, certain income would have been generated, and the possibility that,
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the accident having occurred, the Plaintiff nonetheless proceeds to excel and
to reach their potential.
[51] The manner in which the Plaintiff elected to present her case in order to prove
her quantum leaves much to be desired.
[52] The evidence presented is, to a great degree, vague and unsubstantiated.
The Plaintiff has, however, even if it is by the slightest of margins, on a balance
of probabilities, convinced the Court that a dirninishment in her earning
capacity has occurred. This Court is, however, not persuaded that the
diminishrnent in her earning capacity is fairly reflected in the expert reports
presented to the Court. The Court is similarly not persuaded that general
contingencies ought to apply. Having regard to what this Court has already
found supra, I am satisfied that this matter is indeed one where significantly
higher than normal contingencies can be applied, and I believe, given the facts
of the matter, that a contingency reduction of 50% would be justified under the
circumstances,
COSTS:
[53] Although there has been some success on the part of the Plaintiff, the Plaintiff
remains the party that was, to a greater degree, the cause of the incident at
hand. To order the Defendant to reimburse the Plaintiff for the Plaintiff's costs
in totality under circumstances where it was evidently clear that the Defendant
was justified in opposing the Plaintiff's claim would not be fair. •
(54] I accordingly believe that the Defendant ought to be liable in respect of the
Plaintiff's costs propo1iionally to the finding on the merits the Cou1i previously
made.
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ORDER:
[55] For all the aforesaid reasons, the following Order is made:
[52.1] The Plaintiff's application in terms of Rule 38(2) of the Uniform Rules
of Court is granted, and the expert evidence of the Plaintiff is received
on affidavit.
[52.2] The Defendant is held 20% liable for the Plaintiff's proven or agreed
damages.
[52.3] The Plaintiff's claim for general damages is postponed sine die.
[52.4j The Plaintiffs claim for loss of earnings is reduced by applying a 50%
contingency, and after applying the 50% contingency as well as the
20% liability of the Defendant, the Defendant is liable towards the
Plaintiff in the amount of R 816165.40 in respect of her future loss of
earnings.
[52.5] The Defendant shall pay 20% of the Plaintiff's costs on a party and
party scale.
HF FOURIE AJ
ACTING JUDGE OF HIGH COURT, MIDDELBURG
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Judgment reserved on:
Date of delivery:
29 APRIL 2026
04 MAY 2026
[1] W.E. Cooper- Delictual Liability in Motor Law, 1996 Edition at 193 -194
[2] Cooper supra at 195
[3] Manual v SA Eagle Insurance Company Ltd 1982 (4) SA 352 (C)
[4] Skosana v Road Accident Fund [2026] 1 All SA 588 (MM) (2 February 2026)
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