SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NUMBER: 4492/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 04/06/2026
SIGNATURE:
In the matter between:
MAPELANE VINCENT PLAINTIFF
AND
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
CHAUKE AJ
INTRODUCTION
[1] The Plaintiff's is Mr Mapelane Vincent an adult male who is suing the Defendant
in his Personal Capacity for damages, in terms of the Road Accident Fund Act 56 of
1996 (RAF Act) as a result of motor vehicle accident which occurred on the 31 st of May
2022.
[2] The Plaintiff was the driver of motor vehicle with registration numbers and letters
C[...] which collided with motor vehicle with registration numbers and letter F[...] which
was there and then driven by Mr Victor Modlela (hereinafter referred to as the First
insured driver).
[3] The accident occurred along Deerpark road, Tzaneen, Limpopo Province.
[4] The Plaintiff's Claim against the Defendant is as follows:
a) Payment of 100% of all proven damages to the Plaintiff,
b) The aspect of General Damages was postponed sine die,
c) Payment of R2 900 000-00(Two Million, Nine Hundred Thousand Rand) in
respect of Past and Future Loss of Earnings,
d) And also Section 17 (4) (a) Undertaking in respect of Future Medical
Expenses.
[5) The matter was before Court on Merits and Quantum and on the Subhead of
damages as indicated above.
[6] The Plaintiff issued summons against the Defendant and were served on the
Defendant on the 24th of June 2024.
[7] The Defendant failed to file Notice of Intention to Defend.
[8] The Plaintiff brought an Application for Default Judgment in terms of Rule 31 (2)
of the Uniform Rules of this Court on Both Merits and Quantum.
[9] The Plaintiff served and filed Notice of Set Down on the Defendant on the 10th of
September 2025 and later served and filed Notice of Removal and Re -instatement on
the 07th of October 2025.
[10] Mr T.M Malatji (hereinafter referred to as Plaintiff Counsel) called the matter and
indicated that he was ready to proceed with trial on a Default Judgment basis in terms
of Rule 31 (2) as the Defendant failed to file its Notice of Appearance to Defend.
[11] The issues before Court were that of liability, Past and Future Loss of Earnings
as well as Future Medical Expenses. (Section 17 (4) (a) Undertaking) and General
Damages was to be postponed sine die.
[12] He informed the Court that the Plaintiff has subpoenaed two witnesses, Mr. Victor
Mondlela (hereinafter referred to as the First insured driver) and Mr. Refilwe Selowa in
respect of Merits. Mr. Selowa is employed at Tzaneen SAPS and drew sketch plans
regarding to how the accident occurred.
[13] Plaintiff’s Counsel also brought an Application in terms of Rule 38 (2) in order to
lead evidence by way of Affidavits without calling Experts witnesses to come and give
oral evidence at Court. The Plaintiffs Application in this regard was therefore granted.
[14] This justified the Court in hearing the matter by way of Affidavits in respect of
Quantum. All the Plaintiffs Experts reports remained unchallenged as the Defendant
failed to appoint Experts on the aspect of Quantum.
THE MERITS
[15] Plaintiff’s Counsel called the Plaintiff himself to testify how the accident occurred.
a) His testimony was that on or about the 31st of May 2022, he was the driver
of a motor vehicle with registration numbers C[...] and was travelling from
Tzaneen to Kheshokholo Village along Deerpark road.
b) The accident occurred at 07:30 in the morning. The road was divided by
one lane of travel.
c) He indicated that he was travelling behind the First insured vehicle on the
same lane.
d) He testified that the distance between his motor vehicle and the First
insured vehicle was about 10 meters.
e) He testified that the First insured motor vehicle did not reduce speed
before the accident but only stopped suddenly in the middle of the road.
f) He indicated that brake lights of the First insured vehicle were not on and
the hazards were also not on.
g) He indicated that the First insured vehicle suddenly stopped in the middle
of the road without warning as a result he collided it from behind on the rear right-
hand side.
h) He indicated that he tried to avoid collision by applying brakes.
[17] The Plaintiff was asked under Examination in Chief, why-he did not swerve to the
right in order to avoid the accident, he testified that there were on -coming motor
vehicles. He was further asked by Mr. Malatji whether it was possible for him to take
other evasive actions in order to avoid the accident, and said it was not possible.
[18] Plaintiff’s Counsel called the First insured driver to assist the Court how the
accident happened.
[19] The Court requested him to explain how the accident occurred.
a) He indicated that on the 31st of May 2022, in the morning, he was traveling
along the Deerpark road and the Plaintiff was driving behind him.
b) He was traveling at 60 km/h. His motor vehicle was roadworthy.
c) He reduced speed and indicated to the right into the gravel road.
d) He was stationary on the road, waiting for the on-coming motor vehicles to
proceed first, before turning right when the Plaintiff's motor vehicle collided his
motor vehicle from behind at the back center.
[20] Mr. Malatji called Constable Selowa, he testified that he attended the scene of
the accident on the 31 st of May 2022, along the Deerpark road but did not witness the
accident. He was accompanied by his colleague also from Tzaneen Police Station.
[21] His testimony was that they found two motor vehicles at the accident scene.
[22] He indicated that he was assisted by the Plaintiff and the First insured driver in
order to draw the sketch plan. His evidence was corroborated by the sketch plan which
was contained in the Accident Report.
[23] He further testified that three motor vehicles were involved in a collision in this
matter. He indicated that another sketch plan was drawn by him and this sketch plan is
contained in the Police Docket.
[24] Mr Malatji referred the Court to the Police Docket. It is evidence before Court that
three motor vehicles were involved in a collision.
[25] The Court requested him to explain why only two motor vehicles were mentioned
in the Accident report and three motor vehicles were indicated in the Police D ocket, he
failed to give an explanation.
[26] Plaintiff's Counsel made submissions and referred Court to the following reported
Judgments: Butt and Another v Van Den Camp; AA mutual insurance Associated
Limited v Nomeka and Bata Shoe CO. Limited (South Africa V Moss).
[27] In AA Mutual Insurance Associated Limited V Nomeka 1, the Court
emphasized that:
such a manoeuvre is inherently dangerous, placing a stringent duty on the driver
to ensure it is sure before proceeding.
[28] The Requirements for a Safe Turn. The Judgment in Bata Shoe CO. Limited
(South) v Moss 2 provides a comprehensive exposition of his duty. A driver wishing to
turn must:
a) signal his intention clearly and in good time.
b) refrain from turning until an opportune time -defined as a time when the
turn cam be made without endangering or materially impeding other lawful road
users.
c) the driver bears the duty to satisfy himself by full and carefully personal
observation that such on opportune time exists. A mere signal does not absolve
this duty of observation.
[29] Mr. Malatji made submissions that the issue of liability should be finalized with an
apportionment of 70/30% in favour of the Plaintiff.
[30] The Plaintiff's testimony that the First insured driver made a sudden stop in the
middle of the road without any signal, that the First insured driver did not reduce speed
before stopping, is improbable. It is not possible for a motor vehicle to stop suddenly
without first reducing speed.
[31] The accident occurred in the morning, during daylight, visibility was good and the
road surface was dry.
1 1976 (3) SA 45 AD
2 1977 (4) SA 16 (W)
[32] The Plaintiff conceded that he collided the First insured vehicle from behind, after
applying brakes but his motor vehicle skidded.
[33] In his testimony, the Plaintiff failed to assist the Court how the third motor vehicle
was involved in the collision. This testimony was corroborated by the sketch plan which
was contained in the Accident Report.
[34] The First insured driver in his testimony also did not indicate how the third motor
vehicle was involved in the collision. It is not clear before Court whether the third motor
vehicle was involved in a collision only after the Plaintiffs motor vehicle and the First
insured motor vehicle's collision
[35] The First insured driver indicated that he was collided by be Plaintiffs vehicle as
he was stationary on the road, indicating to turn right into the gravel side of the road.
The insured driver is a credible witness and his testimony is more probable.
[36] The Plaintiff failed to keep a proper following distance, he also failed to keep
proper lookout. Had he kept a proper lookout, he could have seen the First insured
vehicle that was waiting to turn right into the gravel side of the road and the accident
would have been avoided.
[37] From the evidence before Court, the Plaintiffs Claim against the Defendant is
only based on the First insured driver's negligence, which was not proven on the
balance of probabilities and not negligence on the part of the driver of the third motor
vehicle.
[38] I am of the view that the Plaintiff failed to produce a prima facie case against the
Defendant on the aspect of liability in order for this Court to grant Judgment in favour of
the Plaintiff.
[39] In Fourier v Ronald Bobroff & Partners lnc3 the Court state that:
"Duty of on Attorney to Client: breach of mandate in respect of claim for damages
for loss of earnings capacity: damages not provided: absolution from the instance
should have been ordered: appeal dismissed".
[40] Key Aspects of Absolution from the Instance:
a) When it Applies: It is granted when the Plaintiff has failed to provided
sufficient evidence on which a reasonable Court might find for them.
b) The Test: Courts apply the test set out in Claude Neon Lights (SA) Ltd v
Daniel4 1976, asking if there is evidence upon which a reasonable court could
(not should) find for the Plaintiff.
c) Effect: It is not a final Judgment on the Merits ( not res Judicata), meaning
a Plaintiff could, in theory, bring the case again. However, this is constrained by
prescription rules.
d) Procedure: Generally, it is requested after the Plaintiff closes their case,
but before the Defendant presents their evidence.
e) Application: While frequently used in high courts and magistrate courts, it
is also increasingly relevant in specialized forums like the CCMA for dealing with
vexatious claims.
f) Requirements: It is applied sparingly, typically reserved for instances
where the Plaintiff's case is fundamentally weak or the witnesses have
completely broken down.
[41] The Plaintiff's evidence against the First insured driver, on the balance of
probabilities does not indicate a ny form of negligence on the party of the First insured
driver and also fail to assist this Court how the third motor vehicle was involved in this
collision, whether the third motor vehicle was involved in a collision after the Plaintiff's
3 (653/2026) [2017] ZASCA 91 (7 June 2017)
4 1976 (4) SA 403 (A)
motor vehicle and the First insured motor vehicle's collision. Constable Selowa did not
witness. the accident but only drew two sketch plans. His testimony also did not shed
some lights on how the third motor vehicle was involved.
[42] In the circumstances, this Court will only make a ruling on the issue of liability
and not on the aspect of Quantum. I am of the view that the Plaintiff failed to produce a
prima facie case against the Defendant in order for this Court to grant Judgment in
favour of the Plaintiff in respect of Merits.
[43) Wherefore, the Court makes the following Order:
43.1. Absolution from the Instance.
43.2. The Plaintiff to pay the Defendant's party and party costs on scale B.
CHAUKE
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
APPEARANCES
FOR THE PLAINTIFF : ADVT.M. MALATJI
INSTRUCTED BY : NGOBENI CNW ATTORNEYS, POLOKWANE
FOR THE DEFENDANT : NO APPEARANCES
DATES OF HEARING : 12 & 15 JANUARY 2026
DATE OF JUDGMENT : 04 JUNE 2026
This judgement was handed down electronically by circulation to the parties'
representatives by email. The date and time for hand -down of the judgement is deemed
to be 04 JUNE 2026 at 10h00