BUTHELEZI AJ:
1. This matter came before this court as an application for default judgment
against the Defendant, the Road Accident Fund (“RAF”), following
RAF’s failure to comply with the Mediation Protocol despite the Plaintiff
having obtained a Court order compelling it to do so.
2. Notwithstanding the Defendants' delinquency, it remains incumbent upon
this Court to satisfy itself that the Plaintiff has established a proper case
for the relief sought.
3. This Court was invited to determine both issues of liability and quantum.
4. Counsel for the Plaintiff made an application in terms of Rule 38(2) of
the Uniform Rules of the Court to present evidence by way of affidavit
instead of leading oral evidence, when Court indicated that it needed time
to consider the issue of liability in the matter before making its ruling,
this was met with objection from Plaintiff’s counsel. The application in
terms of Rule 38 (2) was abandoned; Plaintiff’s counsel opted to call
witnesses to testify on the issue of liability.
5. Plaintiff had initially intended to rely on the affidavit of his wife and that
of the independent eyewitness. Plaintiff had not filed an affidavit of his
own. However, when a decision to lead oral evidence was made, the
independent eyewitness was not called. Only Plaintiff and his wife (Ms
Kristen Green) testified.
6. The Plaintiff testified that he was a driver of a Hyundai i20 on Witteberg
Street, Eldorado Park, Gauteng Province, which collided with a Toyota
Fortuner driven by a certain Mr. Tyesi (the insured driver).
7. Plaintiff alleges that the insured driver protruded into his lane of travel,
causing the accident.
8. However, the accident report that formed part of the merits bundle,
Plaintiff’s vehicle is identified as “Vehicle A”, the insured driver’s motor
vehicle is described as “Vehicle B”. The report further states that it was
“Vehicle A” that protruded into the face of oncoming traffic, and as a
result, it collided with “Vehicle B”.
9. Plaintiff argued that roles were swapped in the report.
10. Other than evidence given by the Plaintiff in court on the date of the
hearing of the matter, there is no record of the Plaintiff’s version of
events in the documents filed at court. Plaintiff never bothered to provide
his version to the police.
11. Plaintiff testified that he lost a child in this accident.
12. On cross-examination, Plaintiff conceded that he never gave his version
of events to the police upon being discharged because the matter had
already been reported at the time.
13. He reported being visited by the investigators, but his statement was not
taken.
14. He never followed up on the matter to ensure justice was served in a
matter that resulted in the death of his own child.
15. Ms. Kristen Green ( Plaintiff’s wife) testified that she was a passenger in
a vehicle driven by her husband. She noticed the white vehicle that
collided with their car when it was already in front of their car.
16. It happened in a split second; she could not testify to what led to the
collision as she was seated at the back.
The Evidentiary Value of the OAR
17. In RAF matters, the OAR constitutes an important contemporaneous
record of the accident. While it is not, in itself, conclusive proof of the
facts recorded therein, it serves as an objective source of information
compiled shortly after the incident and often reflects observations made at
the scene.
18. Courts have consistently recognised that such reports, particularly when
supported by witness statements, may carry significant evidentiary
weight, especially where a party’s version is uncorroborated or emerges
only at a later stage.
19. Fisher J in Senwamadi v Road Accident Fund 1, stated at Paragraph 25
-26;
“[25] It hardly needs to be stated that the accident report is a crucial piece of
evidence in a claim against the RAF.
1 (2022/2719) [2025] ZAGPJHC 129
[26] The primary purpose of the accident report from the perspective of a
plaintiff in a claim against the RAF is to prove that a motor vehicle accident
occurred; that it was reported by an interested person; that it was recorded
and placed on the police and/or other relevant national systems and is thus a
matter of public record which can be accessed by all interested parties; and
that the relevant details of the accident have been set out in the detail required
for the record.”
Analysis of the Evidence
20. The OAR in the present matter records that the Plaintiff’s vehicle
protruded into the lane of oncoming traffic, therefore causing the
collision.
21. The Plaintiff, in his oral testimony before this Court, denied this version
and maintained that the collision was caused by the other driver.
However, the Plaintiff’s version of events is only tendered for the first
time at court during the hearing of the matter. .
22. Of particular concern is the absence of any statement by the Plaintiff in
the police docket. Given that the Plaintiff was directly involved in the
collision and, more significantly, that he tragically lost a child in the
accident, it would reasonably be expected that he would have taken steps
to provide a statement to the authorities and to pursue accountability.
23. The Plaintiff’s failure to make any follow-up with the police, to ensure
that the responsible party was brought to book, or to advance the
investigation otherwise, is difficult to reconcile with his version that
another party was solely to blame for the collision.
24. This omission materially detracts from the credibility of the Plaintiff’s
version. It suggests either a lack of genuine belief in the correctness of his
own account or, at the very least, an indifference inconsistent with the
gravity of the consequences of the accident.
25. When weighed against the contemporaneous OAR, the Plaintiff’s version
appears to be an ex post facto reconstruction lacking objective support.
26. The version of Plaintiff’s wife does not advance the Plaintiff’s case as she
did not see how the accident occurred; her recollection is that of the white
vehicle that was already in front of their car, and she could not provide
details of the events leading to the collision as she was seated at the back
of the vehicle.
27. In the matter of Ninteretse v RAF2, Raulinga J indicated that "...the
plaintiff bears the onus to prove on a balance of probabilities that the
insured driver was negligent and that the negligence was the cause of
the collision from which he sustained the bodily injuries. Even in the
instance where the defendant has not tendered evidence to rebut the
evidentiary burden of the prima facie case presented by the plaintiff in
this case, the plaintiff may not succeed with his claim depending on the
nature and weight of the evidence so tendered."
28. As already stated, the Defendant has been barred from leading any
evidence in this matter. However, it is a long-established principle, in the
matter of Siffman v Kriel3, that courts are not bound to accept the
testimony of a witness simply because it goes uncontradicted, the court
stated that:
2 2018] ZAGPPHC 493 (2 February 2018) at para 28
3 1909 TS 538
"It does not follow, because evidence is not contradicted, that therefore
it is true. Otherwise the court, in cases where the defendant is in
default, would be bound to accept any evidence the Plaintiff might
tender. The story told by the person on whom the onus rests may be so
improbable as not to discharge it"
CONCLUSION
29. Although the Defendant is barred and has not placed any version before
this Court, the Plaintiff has failed to discharge the onus resting upon him.
30. The probabilities, when considered holistically, favour the version
contained in the OAR.
31. The Plaintiff’s version, advanced for the first time in these proceedings
and unsupported by any contemporaneous evidence, is improbable.
32. In the result, the Plaintiff has failed to establish, on a balance of
probabilities, that the insured driver was negligent.