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[2026] ZAGPJHC 441
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Luus v Road Accident Fund (A2025/018626) [2026] ZAGPJHC 441 (30 April 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case No
:
A2025-018626
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
30
April 2026
In
the matter between:
LUUS
,
LOUIS
Appellant
And
ROAD
ACCIDENT FUND
Respondent
This
judgment and the order incorporated herein is handed down
electronically by circulation to the parties’ legal
representatives
by e-mail and uploading to CourtOnline
JUDGMENT
MOULTRIE,
J
[1]
This is an appeal against the decision of the court
a quo
dismissing the appellant’s claim against the respondent in
terms of section 17(1) of the Road Accident Fund Act, 56 of 1995
(“the RAF Act”) for damages arising from a motor vehicle
accident that occurred on 22 July 2017.
Condonation
[2]
The respondent gave no indication that it had any intention of
participating in the appeal until the day before the hearing
when the
State Attorney delivered heads of argument together with an
unnecessary “notice to oppose”. The filing of
the heads
of argument was provisionally accepted on condition that the
respondent would formally apply for condonation.
[3]
In the application that was subsequently delivered, the deponent
explains that the matter had previously been dealt with
by a firm of
attorneys which had not returned the file after its mandate was
terminated in 2020, together with those of all the
other private
attorneys on the respondent’s panel. The respondent had then
“
implemented a new model, instructing the state attorneys’
offices in matters as they were brought to the attention of the
Respondent particularly as they appeared on the court rolls
”,
at which time the allocated claims handler was expected to instruct
the State Attorney. Although the deponent acknowledges
that the
notice of appeal and the notice of set down were both delivered to
the respondent’s offices by hand for the claim
handler’s
attention and served on his email address during February and
December 2025 respectively, she states that he had
been placed on
special leave “
together with a host of other personnel
”
and left the employ of the respondent in approximately February 2024,
at which time his email address had been de-activated.
The
consequence was that the appeal was only brought to the attention of
a responsible person and referred to the State Attorney
when it
appeared on the roll shortly before the hearing.
[4]
In my view, the respondent’s failure to allocate a new claims
handler and to instruct attorneys sooner may be excused
in light of
the fact that the last activity on the matter prior to the departure
of the claims handler would have been the receipt
of the application
for leave to appeal in February 2022 and I do not think it would have
been unreasonable for the respondent to
assume, some two years later,
that the matter had become dormant. Furthermore, given that the
appellant claims no prejudice as
a result of the late delivery of the
heads of argument and has delivered a notice to abide the condonation
application, and since
it would in no way serve the interests of
justice for this Court to ignore legal submissions, I am satisfied
that the condonation
application should be granted. The respondent
rightly seeks no order as to costs and none will be granted.
The
pleadings, the trial and the judgment of the court
a
quo
on the merits
[5]
The appellant pleads the occurrence of the accident in the following
terms:
5.
On or about 22 July 2017 at approximately 21h20 and at or near the
intersection of Swartkoppies
Road And Potgieter Street, Alberton,
Gauteng a motor vehicle accident occurred between a grey Volkswagen
Polo […], driven
at the time by the Plaintiff, and a white
Ford Bakkie […], and an unidentified third motor vehicle who’s
particulars
and the particulars of the driver and owner thereof are
to the plaintiff unknown.
6.
The motor vehicle accident aforesaid was caused by the negligent
driving of the driver of
the unidentified motor vehicle in that
he/she was negligent in one of more or all of the following respects:
6.1
failed to keep a proper lookout;
6.2
Failed to apply brakes timeously or at all;
6.3
failed to have due regard to other road users in particular to the
Plaintiff;
6.4
travelled at an excessive speed under the circumstances;
6.5
entered Swartkoppies Road, at high speed and forced the Plaintiff to
take evasive action, thereby causing
the Plaintiff to collide with
the Ford Bakkie.
[6]
The respondent defended the action, delivered its plea (which
included a denial of both paragraphs quoted above, and an
alternative
plea of sole or contributory negligence on the part of the appellant)
and participated in the pre-trial procedures,
pursuant to which the
merits and quantum were separated. However, the respondent failed to
appear at the trial, which proceeded
in terms of Rule 39(1) by means
of a virtual hearing.
[7]
The learned acting judge who presided
a quo
summarised the
evidence adduced at the trial in her judgment as follows:
[7] The plaintiff was the
only witness to lead evidence in support of his case. His evidence
was brief and cursory. He testified
that that collision occurred on
Swartkoppies Road and Potgieter Street on 22 June 2017 at
approximately 21h20. He clarified the
date as being 22 July 2017 when
led on this point by his representative, Mr Kok. He testified that he
was travelling from his home
to the hospital to pay a deposit because
his wife was expecting their baby. He was driving a grey VW Polo
motor vehicle on the
right hand side of three lanes. He was in fact
in the far right lane of these three lanes.
[8] The plaintiff
testified that he approached a robot controlled intersection and the
lights were green in his favour. He was looking
forward at the
intersection and then he tried to swerve to avoid a vehicle that just
came out of nowhere. As a result of this maneuver
his vehicle went
over the middle Island and into oncoming traffic where it collided
with another car. The unidentified vehicle
came from his left and he
tried to avoid it by swerving to the right over the middle island
into oncoming traffic. He was travelling
at under 70 km/h and he was
looking forward at the time.
[9] On questioning by the
court regarding whether the unidentified vehicle forced him to
perform evasive action, his response was
that he did not know what
happened and it is a mystery to him. This unidentified vehicle just
drove off after it caused him to
swerve to the right as he did.
[10] This represented the
totality of the plaintiff's evidence. No photos of the scene, videos
or sketch plan was presented, nor
were any corroborating witnesses
called to adduce evidence in support of the plaintiff's version.
[8]
Whilst recognising that the appellant’s evidence was
uncontested, the judgment indicates that the learned acting
judge had
“
difficulty accepting
” the appellant’s
“
brief, cursory and insubstantial
” testimony, and
that she ultimately found it to be “
unsatisfactory and
unreliable
” on the basis that …
…
it seems
unlikely that a person would be travelling to a hospital at 21h20 on
a Saturday night in order to pay a deposit for the
delivery of a
baby. The plaintiff's wife could have explained why this was of the
utmost urgency at that time on that day or the
plaintiff could have
elaborated on this point. It was unclear where this unidentified
vehicle actually appeared from and the plaintiff
testified that he
approached an intersection without considering any of his surrounds
but for what was directly ahead. It is also
not clear why no
corroborating evidence was adduced to support the plaintiff's
version.
[9]
The judgment also records that these perceived deficiencies were not
addressed even though the learned acting judge had
chosen to
“
consider the documentation lodged by the plaintiff, with
the RAF, in support of his claim
”, namely an accident
report completed by the driver of the Ford bakkie and an affidavit
deposed to by the appellant as required
by section 19 of the RAF Act.
As to the basis for doing so, the judgment simply records that these
documents had been “
lodged with the RAF and again delivered
to the RAFs attorneys in July 2018 in response to a Notice in terms
of Rule 35(14)
”. The court
a quo
noted that the Ford
driver’s accident report did not refer to the unidentified
vehicle and that there had been no “
follow up counter
statement provided by or from the perspective of the plaintiff
”.
The court observed that the appellant’s section 19 affidavit
“
makes no reference to Potgieter Street or a robot
controlled intersection
” and that it states instead that
the unidentified vehicle “
approached Swartkoppies Road from
the off ramp of the R59
”, to which there was no reference
during the appellant’s oral evidence.
[10]
The
judgment concluded that the appellant had failed to discharge “
the
onus of establishing his case in respect of liability
”,
particularly “
regarding
the negligence of the driver of the unidentified vehicle
”.
In other words, the learned acting judge considered that the
appellant had failed to adduce evidence showing on a balance
of
probabilities that the accident had, even partly,
[1]
been caused by the negligent driving of the driver of the
unidentified vehicle.
The
absence of the record, the notice of appeal, and the parties’
contentions on appeal
[11]
The appellant sought, but was refused, leave to appeal by the
trial court, and the appeal came before this court pursuant to leave
being granted by the Supreme Court of Appeal.
[12]
In
the notice of appeal delivered in terms of Rule 49(2), it is noted
that no transcript of the appellant’s evidence before
the trial
court is available, and that it has not been possible to reconstruct
any record thereof.
[2]
Notwithstanding this, a number of factual allegations is identified
in the notice of appeal as forming part of the appellant’s
“
undisputed
testimony
”
– even though they either contradict, or are not referred to
in, the court
a
quo
’s
summary.
[3]
Recognising this,
the notice of appeal proceeded to suggest that the appellant intended
to “
rely
on the
affidavit
and
the allegations set out in his
application
for
leave
to
appeal
[i.e. to the Supreme Court of Appeal]
…
to
place
facts before
the
court to substantiate
his
appeal read
with
the
decided
facts in the
judge
’
s
judgment now on appeal
”
and would request this court to accept this evidence “
as
if part of the original
record
”.
It is
also
indicated that the appellant will, “
if
found to be necessary
”,
“
seek
leave
to
adduce further evidence
at
the
h
earing
of
this appeal when the matter
is
heard
…
,
either
viva
voce
or
on
affidavit
”.
[4]
[13] This somewhat
unorthodox approach was abandoned in the appellant’s heads of
argument. Instead, it was submitted
that “
[i]nsofar as the
Court of Appeal is of the view that the record of proceedings in the
court
a quo
is critical, then the appellant would submit that
the matter should be referred for a rehearing before another judge
”.
[14]
The appellant’s counsel nevertheless proceeded to argue that
the appeal should succeed on the basis that:
a. even as recorded
in the judgment, the appellant’s testimony was neither
unreliable nor insufficient to establish
the respondent’s
liability; and
b. notwithstanding
that the court
a quo
had improperly considered the accident
report and the section 19 affidavit and unfairly relied upon them to
make credibility findings
against the appellant without giving him an
opportunity to explain the apparent discrepancies, these documents
were “
in any case in [his] favour
”.
[15]
On the other hand, the respondent’s representative sought to
persuade us to dismiss the appeal on the basis that,
if the
appellant’s testimony had been correctly summarised in the
judgment, the court
a quo
had correctly rejected it -
especially in view of the cautionary rule applicable to single
witnesses. She argued that the
content of the accident report and the
section 19 affidavit were not relied upon by the court
a quo
in reaching her conclusion. Finally, she pointed out that if the
testimony given by the appellant is correctly summarised by the
court
a quo
, then the appeal should in any event be dismissed
because the appellant had evidently failed to establish that he
suffered any
bodily injury resulting from the alleged negligent
driving. Notably, the respondent did not seek to suggest that the
court
a quo
’s summary of the appellant’s testimony
was in fact accurate.
Analysis
[16]
In my view, careful analysis of the judgment reveals that neither of
the arguments advanced by the appellant is sustainable
on the basis
that the appellant’s oral testimony is accurately recorded in
the judgment of the court
a quo
.
[17]
In the first place, if it is to be accepted that the appellant’s
testimony was indeed correctly summarised in paragraphs
8 and 9 of
the judgment, then I cannot fault the court
a quo’s
finding
that it was unsatisfactory and unreliable in material respects.
[18]
On the court’s description of the appellant’s evidence,
it is apparent that he was ambivalent under questioning
by his own
representative as to whether “
he was looking forward at the
intersection and then he tried to he swerve to avoid a vehicle that
just came out of nowhere
” (i.e. he did not see the
unidentified vehicle at all) or whether the unidentified vehicle
“
came from his left and he tried to avoid it by swerving
”
(i.e. he did see it, coming from his left). To make matters worse,
the court’s summary records that “
on questioning by
the court
” the appellant testified that “
he did
not know what happened and it is a mystery to him
”.
Furthermore, as the respondent rightly argues, the fact that the
traffic light was green for the appellant does not necessarily
mean
that it was red for the unidentified vehicle, or that it was obliged
to stop, or that the appellant had right of way. Any
of these
conclusions might be incorrect, depending on the layout of the
intersection, which was not sought to be proved by the
appellant at
the trial.
[19]
Secondly,
although I accept that it was inappropriate for the court
a
quo
to
have considered the accident report and the section 19 affidavit
without them having been adduced into evidence (whether they
were
hearsay or not),
[5]
I agree with
the respondent that the learned acting judge did not rely on these
documents in reaching her conclusion that the appellant
failed to
establish causal negligence on the part of the unidentified driver.
It is apparent from the judgment not only that the
court
a
quo
contemplated that “
a
simple explanation
”
might well exist for the “
discrepancies
”
that she identified between these documents and the appellant’s
viva
voce
evidence, but that she ultimately elected to ignore their contents,
and to evaluate the appellant’s oral testimony on its
own
terms. She expressly observed that to “
reconcile
”
the discrepancies “
and
to try fill in the incomplete picture presented by the plaintiff will
entail a fair amount of conjecture and speculation
”
and that it was “
not
the task of this court to speculate on the manner in which the
collision occurred because of the paucity of factual evidence
adduced
by plaintiff
”
before returning to the other deficiencies that she identified in the
appellant’s testimony.
[20]
It is therefore apparent that the accuracy of the court
a quo
’s
summary of that testimony is indeed “
critical
” to
the determination of the appeal, as contemplated by the appellant and
referred to in paragraph [13] above.
[21]
This brings
the matter ‘full circle’ and places the appellant’s
criticisms of the court
a
quo
’s
summary of his testimony into sharp focus. The Supreme Court of
Appeal has held that where a trial court’s findings
of fact are
disputed in circumstances where it is not possible to reconstruct the
record of evidence, fairness compels an appeal
court to remit the
matter to the trial court for a hearing
de
novo
before a different judge, and that failure to do so would constitute
a serious misdirection on the part of the appeal court.
[6]
This is the path that we are obliged to follow here.
Conclusion,
costs and order
[22]
In conclusion, the appeal falls to be decided on the basis of the
inadequacy of the record of the proceedings before
the court
a
quo
, and the impossibility of reconstruction thereof in
circumstances where its findings of fact are disputed.
[23]
Given that neither party has been granted the primary relief sought
by it in the appeal and, given that the circumstances
underpinning
this court’s decision on appeal were not of either of their
making, it is appropriate that the wasted costs
of the trial before
the court
a quo
and the costs of the appeal (including the
costs in the unsuccessful application for leave to appeal) should be
costs in the cause.
[24]
I make the following order:
1.
The
respondent’s application for the condonation of the late filing
of its heads of argument is granted, with no order as
to costs
.
2. The appeal is
upheld and the order of the court
a quo
is set aside.
3. The matter is
remitted to the trial court to start
de novo
before a
different presiding judge.
4. The wasted costs
of the trial before the court
a quo
and the costs of the
appeal (including the costs in the unsuccessful application for leave
to appeal) shall be costs in the cause.
RJ
MOULTRIE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
I agree.
FHD VAN OOSTEN
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
I agree.
R STRYDOM
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
Date
of hearing:
23 February 2026
Date
of judgment:
30 April 2026
For
the Appellant:
I Strydom instructed by Leon JJ van Rensburg
Attorneys
For
the Respondent:
S
Ameersingh instructed by the State Attorney, Johannesburg
[1]
The appellant bears no onus in relation to the pleaded
defence of contributory negligence: see, for example
Fox
v RAF
[ 2018] ZAGPPHC 285 (26 April 2018).
[2]
Two
affidavits deposed to by the appellant’s attorney and
delivered shortly before the appeal hearing indicate that his
investigations revealed that only the introductory portion of the
trial at which counsel introduced himself had been recorded,
and
that no recording was made of the oral evidence given by the
appellant. He also states that he has established that neither
the
appellant’s previous attorney nor the learned acting judge
a
quo
was able to furnish any notes of the unrecorded testimony.
[3]
For example, the appellant’s SCA affidavit states
that he testified during the trial that he approached the
intersection “
whilst
keeping a lookout
”
and that he sustained serious injuries in the accident. The
appellant also contends in the SCA affidavit that the trial
court
“
completely
misunderstood
”
his testimony regarding the purpose of the hospital deposit. He
alleges that his evidence was that he was going to the
hospital to
pay a deposit not “
because
his wife was expecting their baby
”
as recorded in the court’s summary, but because she had been
admitted to hospital with a pregnancy complication
that required
emergency treatment, and he needed to pay a cash deposit for her
treatment “
immediately
”.
[4]
This is unsurprising given that the content of the
appellant’s SCA affidavit does not substantiate the notice
of
appeal in at least one instance: whereas the notice of appeal states
that the appellant’s “
undisputed
testimony
”
had been that the unidentified vehicle entered the intersection “
at
high speed
”,
no such statement is either made on oath in the SCA affidavit or
recorded in the court’s summary of the appellant’s
testimony.
[5]
cf. the recent judgment of this court, per Strydom J,
in
Shoreline
Auctioneers CC v City of Johannesburg and Another
(unreported, Gauteng Division, Johannesburg Case no. A2024-056855,
24 April 2026) paras 24 to 29.
[6]
Maravha
v Minister of Police
2024 (4) SA 84
(SCA).