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[2026] ZAGPPHC 479
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Mkhize v Road Accident Fund (60419/2021) [2026] ZAGPPHC 479 (21 May 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
No. 60419 / 2021
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
YES
DATE 21 May 2026
SIGNATURE
In
the matter between:
BUKANI
BUHLEBUYEZA MKHIZE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
ORDER
The
plaintiff’s claim is dismissed with costs.
JUDGMENT
TOLMAY
J
:
[1]
The plaintiff instituted a claim for damages against
the defendant
(the RAF) after he was involved in a motor vehicle accident that
occurred on 3 February 2021 near Wolmarans and Claim
Street in
Hillbrow, Johannesburg. The matter came before me to determine merits
and quantum. There was no appearance on behalf
of the defendant.
[2]
The plaintiff testified on the merits. He is employed
as a taxi
driver, but on the day in question he drove a Toyota Corolla
belonging to his cousin with registration number J[...].
He was at
the time of the accident in the vicinity of a T- junction controlled
by a robot.
He stated that he was driving at
approximately 20 km/h when another vehicle moved into his lane and
collided with the right side
of his car.
There was
damage to the driver’s side of his vehicle, on the front door
and bumper. The other vehicle apparently drove
off.
According
to the plaintiff, the accident occurred at approximately 20:00.
Hospital records indicate that he was admitted at 01:00.
The
plaintiff was unable to account for the time lapse between the
accident and his admission.
[3]
This
version contradicts the version set out in an affidavit submitted by
him in terms of s19(F) of the Road Accident Fund Act
[1]
.In
this affidavit he explained that on the day in question a motor
vehicle of which the particulars were unknown veered into his
lane
and he hit the robot in an attempt to avoid the accident. He said
that there was nothing he could have done to avoid the accident.
This
affidavit was attested to on 26 October 2021. He could not explain
the discrepancies between this affidavit and his version
in court. He
blamed the person who drafted the affidavit, who turned out to be his
attorney. No reasonable explanation was given,
why his attorney got
it wrong and no evidence was provided by the attorney to explain this
allegation by the plaintiff.
[4]
The collision was not reported to the police. The plaintiff
explained
that due to the severity of the injuries he was unable to do so. He
could not explain why he did not do so on a later
occasion, after he
was discharged from hospital. It is also of concern that his cousin,
whose vehicle was damaged, did not do so.
In response to a question
from the court he said his cousin was at work and in Johannesburg.
The cousin was not called as a witness,
nor was the court requested
to stand the matter down to allow for his testimony to be led.
[5]
The plaintiff testified that he was taken to hospital
by ambulance.
In response to a question by the court he said security officers at
the scene called the ambulance. He has never
seen or talked to these
security officers since the accident. No attempt was made to call the
security officers or any explanation
proffered why they could not be
traced or called as witnesses. They could have been able to throw
some light on exactly what happened.
[6]
The court asked whether there were any photographs taken
of the
vehicle. The plaintiff said that he took photographs with his phone,
but he lost his phone. One would have expected that
seeing that the
vehicle belonged to his cousin, that someone would have taken
photographs of the damage to the vehicle.
[7]
What we know is that on the night in question the plaintiff
presented
at the Charlotte Maxeke Hospital. The report of the orthopedic
surgeon and the medical records notes injuries to the
right ankle and
foot. He was treated for these injuries and certain sequelae of these
injuries will impact him adversely.
[8]
The
evidence about the accident was limited, conflicting, and inadequate.
The plaintiff was not a convincing witness.
Under
Section 17(1)(b) of the Road Accident Fund Act the plaintiff
bears the onus of proving, on a balance of probabilities,
that the
accident was caused by the negligent driving of a motor vehicle and
that such negligence resulted in the harm suffered.
In
Fikre
v Road Accident Fund
,
[2]
the court emphasised that material contradictions in the plaintiff's
testimony, coupled with the absence of corroborative evidence,
significantly weaken the plaintiff's case. The court found that the
plaintiff's failure to challenge the contents of an accident
report
or call witnesses to corroborate his version meant he had not
discharged the burden of proof, leading to the dismissal of
the
claim. The same principle should apply here.
[9]
The
absence of a police report and supporting evidence, such as
photographs of the damage, further undermines the plaintiff's
credibility
and ability to substantiate the claim. In
Msibi
v Road Accident Fund
,
[3]
the court highlighted the importance of providing sufficient evidence
to establish liability, particularly in cases involving unidentified
drivers.
The
plaintiff's absence of supporting evidence weakens the claim and
could result in dismissal. Procedural rules permit the
plaintiff to present their case even if the defendant is absent,
however, the plaintiff must still meet the evidentiary burden.
[10]
The plaintiff's claim against the RAF
should be dismissed if the plaintiff fails to prove, on a
balance of probabilities,
that the accident was caused by and
the resulting injuries by the negligence of the driver of the unknown
vehicle. In this
case the contradictory versions of the accident,
lack of police reporting, absence of photographic evidence, and no
supporting
evidence significantly undermined the plaintiff's case. I
therefore conclude that the plaintiff did not prove on a balance of
probabilities
that the injuries sustained by him was as a result of
the negligence of the unknown motor vehicle.
ORDER:
[11]
The following order is made:
The plaintiff’s
claim is dismissed with costs.
R TOLMAY
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION, PRETORIA
This judgment was
prepared and authored by the judge whose name is reflected and is
handed down electronically by circulation to
the parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines.
The date for hand-down is deemed
to be 21 May 2026.
APPEARANCES:
For the
Plaintiff
:
Adv U.B Makuya
Instructed
by
:
Makhavhu Attorneys
For the Defendant
:
No appearance
Matter heard on
:
22 April 2026
Judgment
date
:
21 May 2026
[1]
56
of 1996.
[2]
[2025]
JOL 70754 (GP)
.
[3]
[2025]
JOL 69072 (MM)
.