IN THE HIGH COURT OF SOUTH AFRICA ,
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
DELETE WHICHEVER IS NOT APPLI CABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
(4)
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signature
In the matter between :
NKOSI NKULULEKO GIFT
AND
ROAD ACCIDENT FUND
12/06/2026
DATE
CASE NUMBER: 6573/24
PLAINTIFF
DEFENDANT
Delivered: this judgment was handed down electronically by circulation to the
parties ' legal representatives by email. The date of hand down is deemed to be
12 June 2026
JUDGMENT
2
Phahlamohlaka J
Introduction and factual background
[1] The plaintiff, Nkululeko Gift Nkosi, claims damages against the Road
Accident Fund arising from a motor vehicle accident that occurred on
10 September 2022 on the N12 near Witbank.
[2] The plaintiff alleges that an unidentified vehicle swerved into his lane,
causing him to take evasive action and collide with a stationary truck.
[3] The plaintiff also claims for past and future loss of earning capacity as
well as future medical expenses.
[4] The defendant, Road Accident Fund, disputes liability and quantum.
Liability.
[5] On liability, the plaintiff testified under oath, and he called no
witnesses to testify on his behalf. The defendant closed its case at the
close of the plaintiff’s case without calling any witnesses.
[6] On quantum, the plaintiff at the outset brought an application for the
evidence of the expert witnesses to be dealt with by way of affidavits in
terms of Rule 38(2) of the Uniform Rules of Court. The application was not
opposed by the defendant, and I accordingly granted the application.
[7] The plaintiff testified as follows regarding the accident:
7.1 On 10 September 2022 at about 23:00 he was the driver of a motor
vehicle on the N12 highway. Another vehicle immediately swerved into
his lane. The plaintiff then swerved to the left and drove into a truck that
3
was stationery and bumped that truck at the back. As a result of the
accident, he sustained injuries to his forehead, left hip and right toe.
7.2 The plaintiff further testified that at the time of the accident he was
working as a Bolt driver, earning about R 8 000.00 per month. Afte the
accident he could not resume his pre-accident job, not because of the
injuries but because he did not have a vehicle. However. Post-accident
he secured employment at Secunda as a general worker. Later he got
a better offer of employment at IPSCOR as a Machine Operator. He is
still working at IPSCOR earning R 20 000.00.
[8] As alluded to earlier, the defendant called no witnesses because
according to the plaintiff no witnesses could be identifiable.
The injuries and sequelae
[9] The plaintiff presented the evidence of the following experts in an
endeavour to prove damages suffered as a result of the injuries sustained
in the accident:
1. Dr. NC Hadebe (Orthopaedic Surgeon) opined that the Plaintiff sustained a
fracture of the left acetabulum (hip), right big toe metatarsophalangeal joint
dislocation, and a head laceration. Treated with surgery and physiotherapy.
The plaintiff complains of ongoing pain in the left hip and right foot, especially
with standing, walking, and cold weather. He also suffers o ccasional
headaches.
On p rognosis Dr Hadebe concluded that Injuries are permanent but
manageable with pain medication and possible future surgery (right foot). The
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pain limits the plaintiff’s ability to perform jobs requiring prolonged standing or
walking.
The expert further opined that the Plaintiff’s ability to compete in the open
labour market is affected, but life expectancy is not reduced.
2. Miyelani Molemi (Occupational Therapist) reported that pre-accident the
Plaintiff worked as a Bolt driver, which is a light to medium work. post-accident
the plaintiff did not return to Bolt driving because the vehicle written off. , not
due to incapacity). He later found a job and worked as a general worker and
then as a roofbolter operator which falls under medium to heavy work.
The Occupational Therapist recorded that the plaintiff could perform work of
early medium strength demand (up to 12.5kg) but with pain.
3. PG Baloyi (Industrial Psychologist) recorded that pre-accident earnings the
plaintiff was earning R380 per week as a Bolt driver (based on 40% share of
fares). This is below the typical salary for unskilled workers.
Post-Accident Employment: After a period of unemployment, plaintiff worked
as a general worker (R9,019/month), then as a roofbolter operator
(R6,065/week, or R315,386/year), which is within the semi-skilled range.
On Career Trajectory the industrial psychologist opined that despite physical
limitations, plaintiff’s earnings and vocational standing have improved post -
5
accident. However, his physical capacity is reduced, and his employment is
less secure.
If he loses current employment, he may struggle to find suitable work due to
physical limitations. Therefore, higher-than-normal contingency deductions for
future loss of earnings due to increased risk were recommended.
4. Wim Loots Actuarial Consulting (Actuary) calculated loss of earnings based
on industrial psychologist’s figures (R380/week pre -accident, actual payslips
post-accident).
Results:
-Past loss: R10,429 (after contingencies)
-Future loss: R2,028,253 (after contingencies)
-Total: R2,038,682
The Actuary used higher post-accident contingencies (45%) to reflect medical
experts confirm permanent impairment and pain, but not total incapacity.
[10] Defendant challenges the reliability of pre -accident earnings, causation
(vehicle loss vs. incapacity), and the factual basis for future loss.
Liability
[11] The plaintiff bears the onus to prove, on a balance of probabilities,
that the collision was caused by the negligence of an unidentified driver
and that such negligence resulted in his injuries. The plaintiff's evidence
regarding the mechanism of the accid ent was inconsistent across
affidavits and oral testimony, with material contradictions as to whether
he was struck from behind or swerved to avoid an encroaching vehicle.
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[12] No independent witnesses were called to corroborate the presence
or actions of the unidentified vehicle, despite the availability of such
witnesses. The stationary truck was described as large and fitted with
reflectors, and the plaintiff conceded under cr oss-examination that he
failed to apply his brakes or take alternative evasive action.
[13] The plaintiff contradicted himself on material aspects relating to how
the collision occurred. As a single witness, his evidence must be reliable
and consistent in order for the court to accept it.
[14] In S v Mafaladisoe n Andere1 The court stated that where there were
material differences between the witnesses evidence and prior
statement, the final task of the trial judge was to weigh up the previous
statement against viva voce evidence to consider all the evidence and
to decide whether it was reliable or not and whether the truth was told,
despite any shortcomings.
[15] The plaintiff stated in the accident report that his vehicle was hit at
the back by a truck that was following him. He could not explain why
that version changed materially when he testified in court. This is not just
a minor discrepancy that can be ignored.
[16] Counsel for the plaintiff referred me to several judgments to try and
persuade me to find that the insured driver was negligent. All the
authorities confirm that the test is objective.2
1 2003(1) SACR 583(SCA) at 584
2 Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust as amicus curiae) [2002] 4 ALLSA
346 (SCA)
[1 7] In Kruger v Coetzee3 the court stated that:
" In an action for damages alleged to have been caused by the defendan t 's
negl igence , for the purposes of liabi lity culpa only arises if a diligence paterfamilias in
the position of the defendant not only would have foreseen the reasonab le possibility
of his condu ct injuring another in his person or proper ty and caus ing him patrimonia l
loss, but wou ld a lso have taken reasonab le steps to have guarded against such
occ urrence; and the defendant failed to take such steps."
[ 18] The c ourt finds that the plaintiff failed to maintain a proper lookout
and exerc ise rea sonable. On the evidence , the plainti ff has not
disc harged the burde n of proving that the uniden tified driver w as the
ca use of the c ollision. The more probab le cause is the plaintiff's own
inattention or neg ligen ce.
[19] According ly, the plain tiff 's c laim stands to fail on the basis that he
failed to prove that the insured driver was neg ligent. I therefo re find that
the defe ndant is not liable.
Order
[1 5] In the result I make the following orde r:
1. The plaintiff's claim is dismissed .
2. No order as to c osts.
3 1966 (2) SA 428 (A)
7
K F Phahlamohlaka
Judge of the High Court
8
Appearances
For the plaintiff: Adv H Nkabinde
Instructed by: Nkgadima & Associates Attorneys Inc.
Email: nkgadimaattorneys1@gmail.com
For the defendant: Adv Mashabane
Instructed by: State Attorney
Email: CaswllM2@2RAF.co.za
Date judgment reserved: 16 February 2026