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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
CASE NO. 1359/2023
(1) REPORTABLE: NO/YES
(2) OF INTEREST TO OTHER JUDGES: NO/YES
(3) REVISED
DATE 06/07/2026
SIGNATURE.
In the matter between:
LEBOGANG JASTICE KEKANA PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
This judgment is made by the Judge whose name is reflected herein and submitted
electronically to the parties and/or their legal representatives by e-mail.
This judgment is further uploaded to the electronic file of this matter on Caselines by the
Judge and/or his/her secretary. The date of this judgment is deemed to be the 6th day of July
2026
__________________________________________________________________
JUDGMENT
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BAM, AJ
[1] The plaintiff has instituted a damages claim against the defendant (“the RAF”)
arising from injuries he sustained in a motor vehicle accident on 4 September 2022.
The claim is in terms of section 17 (1) of the Road Accident Fund Act No. 56 of 1996
(“the Act”)
[2] On the date of trial, the plaintiff's counsel, Mr M. Mhlanga, raised an objection
to the presence of the legal representative for the RAF on the basis that the matter is
supposed to be heard on an unopposed basis. This is because the defendant filed a
notice of intention to defend only and had not filed a Plea to date.
[3] Upon enquiry by the court as to whether the plaintiff had served a notice of
bar, Mr Mhlanga responded that it was not s erved but the Plea should have been
filed anyway in accordance with the requirements of the rules . He said that failure to
file same entitles the plaintiff to proceed on a default basis.
[4] Attorney for the defendant, Mr. N. Mhlanga counteracted the submission by
indicating that the plaintiff ’s attorneys have been engaging with the defendant
despite the latter not having filed a Plea. This therefore in the absence of a notice of
bar entitles the defendant to be present in court and to defend the matter . Counsel
for the plaintiff admitted to several engagements with the defendant for purposes of
securing an offer.
[5] I decided to have the matter proceed since the defendant had not been barred
from pleading as is prescribed in the rules. I relied on the case of Magdalena v Road
Accident Fund [2024] ZAGPPHC 398 wherein Kubushi J referring to Erasmus:
Superior Court Practice, described the effect of Rule 26 as follows:
“Failure to deliver a declaration or plea within the time stated does not entail
an automatic bar; a notice of bar must be given.”
[6] Failure to deliver a replication or subsequent pleading within the time stated
entails an automatic bar and no notice of bar is necessary in this regard . Erasmus
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referred to the case of Landmark Mthatha (Pty) Ltd v King Sabata Daliyendyebo
Municipality1 in which the court stated the following regarding Rule 26:
“According to Rule 26 a failure to deliver a replication or subsequent pleading
will result in an automatic barring. Such automatic barring , whilst it may result
in some form of prejudice in that the party con cerned may be prevented from
pleading its case fully and properly, will result in the shutting of the doors of
the court to such litigant by way of default judgement. The only pleadings,
which according to the rule , require a notice of bar to be served as a
precursor to the barring of such litigant from pleading further are, in effect, a
declaration and a plea (and an exception to particulars of claim or a
declaration as a precursor to pleading thereto). It follows logically that the
framers of the rules must have had in mind that an automatic barring of a
declaration or a plea, would be too drastic a measure. Hence the requirement
that the defaulting party ought to be placed under bar by way of notice to file
the relevant pleading within the five -day period before such party is regarded
as being in default of filing the pleading concerned and ipso facto barred.”
[7] Rule 26 thus isolates a replication or subsequent pleadings thereto from the
other pleadings for purposes of barring. It is noted that the second sentence of the
rule says:
“If any party fails to deliver any other pleading, within the time laid down in these
rules, or within any extended time allowed in terms thereof, any other party may by
notice served upon him require him to deliver the pleading referred to in the notice
within 5 days after the day upon which the notice is delivered . Any party failing to
deliver the notice shall be in default of filing such pleading and ipso facto barred.”
[8] Since the plaintiff was already present in court to testify on the merits of the
case, it was agreed that it would be in the interest of the proper administration of
case, it was agreed that it would be in the interest of the proper administration of
justice to proceed to hear his testimony while postponing the quantum portion of the
case sine die. I accordingly made an order of separation of issues in terms of Rule
33(4) of the Uniform Rules of Court
1 Landmark Mthatha (Pty) Ltd v King Sabata Daliyendyebo Municipality: In re African Bulk Earthworks (Pty) Ltd v
Landmark Mthatha (Pty) Ltd 2010 (3) SA 81 (ECM) at 86B-C
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[9] The plaintiff testified that on 4 September 2022 he and a friend travelled to
Siyanqoba Township to drop off 2 ladies who were returning home from attending a
funeral. He was driving his blue VW Golf with registration numbers J[...]. On their
way back, after passing the taxi rank along the Verena Road, a vehicle emerged in
front of him on his lane and collided head-on with his vehicle. He became aware of
this vehicle when it was too close for him to take any evasive action . The time was
about 02h00 in the early hours of the morning.
[10] The plaintiff testified further that people rushed to the scene to assist and
pulled him out through the back seat because his door would not open. He lost
consciousness thereafter and woke up when he was taken out of the ambulance at
Witbank Hospital.
[11] He said he sustained injuries and underwent surgery at Witbank Hospital to
repair a fracture on his right thigh on 12 September 2022. He was treated with
injections and medication and stayed at home for two months before going back to
work.
[12] In response to questions posed by his counsel, he said the road was straight
and did not have any streetlights. He told the court that the errant vehicle drove off
after the accident. He repeated that the vehicle was too close when he noticed it ,
adding that he was not sure if it had its lights on. He confirmed the details appearing
on the accident report as his and those of his vehicle.
[13] Upon cross examination by Mr. N Mhlanga for the RAF, he gave the following
responses:
13.1 When he saw the insured vehicle, it was about 6 to 7 metres away,
demonstrating by the distance between the witness box and one of the walls
of the courtroom.
13.2 His own vehicle’s lights were switched on.
13.3 The police were called by people who were on the scene after he had already
been taken to hospital, he could not tell what happened immediately after the
accident.
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13.5 He learned about the particulars of the insured vehicle from the same people
because they took pictures at the accident scene and gave them to his
brother, who had arrived later.
13.6 When he went to open a case at the police station, he used the details given
to him by his brother . He no longer has the pictures because he is now using
a different phone.
13.7 The road has a dual carriageway, and the collision happened on his lane of
travel.
13.8 He did not attempt to swerve because there were trees on the side he would
have swerved to . He had applied his brakes, but it was too late to avoid the
collision.
13.9 He possesses a valid driver’s license which he obtained in 2015.
13.10 His passenger also got injured while he himself lost consciousness.
13.11 He did not give the pictures to his attorneys because he no longer has the
phone they were stored on.
[14] Upon re-examination by his counsel, he confirmed that after the impact he did
not see the people who came to help him; he just heard voices.
[15] Plaintiff had no further witnesses and closed his case. The defendant had no
witnesses to call and closed its case. The parties agreed to submit heads of
argument.
[16] In his heads of argument , counsel for the plaintiff submit ed that the plaintiff
has discharged the onus to establish negligence on the part of the insured driver on
a balance of probabilities . He further averred that even though the accident report
contains only the version of the plaintiff, it remains relevant as a contemporaneous
record in support of the plaintiff ’s attempts to report the collision. He asked the court
to take into consideration that the defendant did not file a plea, nor provide any
eyewitness account of the collision.
[17] Counsel referred to authorities to reiterate the tri te principle that a claimant
needs only prove 1% negligence on the part of the insured driver for liability to attach
to the RAF in terms of section 17 (1) of the Act. The fact that the collision happened
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on the plaintiff's lane of travel constitutes prima facie evidence of negligence on the
part of the insured driver as per the maxim res ipsa loquitur. All that is left for the
court in the absence of contravening evidence is to evaluate the plaintiff's credibility
and reliability, that is , whether his version is the most probable explanation of how
the accident occurred. Counsel submitted that the plaintiff's version , taken in its
totality, bears the hallmarks of reliability. There is a similar thread across all the
documents in which the way the accident occurred is described which also ties up
with his viva voce evidence. As a result , the plaintiff is entitled to judgment in his
favour on the merits and the defendant ought to be held liable for his proven or
agreed damages.
[18] Mr. N Mhlanga on the other hand started his argument by stating that the
onus rests on the plaintiff to prove that his injuries were caused by the negligent
driving of the insured driver . He referred to the conduct of the plaintiff shortly before
the collision - that he did not hit his emergency brakes and did not even attempt to
swerve. He also failed to call his passenger to corroborate his version or even
produce photographs of the scene considering that the police report is incomplete as
the author did not visit the scene.
[19] Mr. Mhlanga referred to case law in support of his contention that the plaintiff
could have attempted one or two evasive steps and rejected the application of the
res ipsa loquitur in favour of the plaintiff under circumstances where the best
available evidence was not presented before court. The plaintiff, it was argued, had
instead chosen to rely on hearsay evidence from people who attended the scene.
Due to the failure to produce all the available evidence, the plaintiff cannot be
allowed to benefit from inferential reasoning.
[20] Regarding the accident itself , Mr N Mhlanga says there is a probability that
[20] Regarding the accident itself , Mr N Mhlanga says there is a probability that
there was no second vehicle involved, the plaintiff could have lost control of his
vehicle, or collided with a tree, or was driving at an excessive speed . He
recommended that the court applies apportionment of 50% in favo ur of the
defendant.
The Law
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[21] The plaintiff’s submissions are premised on the fact that the re is no
controverting evidence to his version as well as on the principle of res ipsa loquitur.
[22] It is trite that even in the absence of evidence by a defendant, a plaintiff still
bears the onus to proof that his damages were occasioned by the negligent conduct
of the defendant. In the case of Kruger v Road Accident Fund [2024] ZAFSHC 110,
Opperman J made the following statement regarding the diligens paterfamilias test
referred to in Kruger v Coetzee2:
“[14] In the light of recent authorities , JR Midgley and JC van der Walt in
Lawsa3 have made the following observation: ‘When assessing negligence,
the focus appears to have shifted from the foreseeability and preventability
formulation of the test to the actual standard : conduct associated with a
reasonable person. The Kruger v Coetzee test, or any modification thereof,
has been relegated to a formula or guide that does not require strict
adherence. It is merely a method for determining the reasonable person
standard, which is why courts are free to assume foreseeability and focus on
whether the defendant took the appropriate steps that were expected of him
or her.’”
[23] In the case of Kruger v Coetzee supra, the court provided guidance on how to
approach the issue of apportionment of liability. In paragraph 23, it held that:
“Section 1 of the Apportionment of Damages Act 34 of 1956 gives a discretion
to the trial court to reduce a plaintiff ’s claim for damages suffered on a just
and equitable basis and to apportion the degree of liability. Where
apportionment is to be determined, the court is obliged to consider the
evidence as a whole in its assessment of the degrees of negligence of the
parties. Writers have opined that apportionment of liability should only
generally be considered where it can be proven that the plaintiff was in a
position to avoid the collision. In this instance in order to prove contributory
position to avoid the collision. In this instance in order to prove contributory
negligence, it is necessary to show that there was a causal connection
between the collision and the conduct of the plaintiff, this being a deviation
from the standard of a diligens paterfamilias.”
2 1966 (2) SA 827 (A)
3 LAWSA 3rd Ed. At 284 para.55
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[24] In the case of Nichol v Road Accident Fund [2025] ZAGPJHC 113 , the court
held, regarding a pedestrian accident, that:
“Even accepting that the accident would not have occurred had the plaintiff
not been on the side of the road, through application of the sine qua non (“but
for”) test, this does not in itself attribute liability to the plaintiff. The plaintiff ’s
conduct should not only have factually caused, or materially have contributed
to the accident occurring, but also have been sufficiently proximately
connected to it, to meet the causal element of the definition of Section 1 of the
Apportionment Act (read with section 17 of the RAF Act.)”
[25] In his section 19 (f) affidavit, the plaintiff says he was driving a dark blue Golf
with registration numbers J[...] which collided with a white Corolla bearing
registration numbers W[...]. He alleges that the collision was due to the sole and
exclusive negligence of the driver of the insured vehicle. He added that he sustained
injuries for which he was hospitalised and treated at Witbank Hospital.
[26] The accident report does not have a sketch of the accident as the compiler
did not visit the scene. The description of the accident is taken from the interview
with the plaintiff and corroborates what is stated in paragraph s 6 and 7 of the
Particulars of Claim. What is significant for purposes of this trial is that the report
contains the details of the insured driver and of the vehicle he was driving. He could
have been called to testify in support of the alleged contributory negligence.
[27] It is correct that the insured driver, according to the testimony before court,
was prima facie negligent by driving on the incorrect lane in the face of oncoming
traffic. A diligens paterfamilias would have foreseen that his conduct may cause
injury to the plaintiff or any other road user using the left lane. However, the principle
of res ipsa loquitur, the crux of which is circumstantial inference, does not mean that
of res ipsa loquitur, the crux of which is circumstantial inference, does not mean that
the conduct of the plaintiff should not be scrutinised . Where the defendant raises
contributory negligence, there must be evidence to establish negligence on the part
of the plaintiff on a balance of probabilities.
[28] In his own words, Mr Kekana testified that his vehicle collided with a white
Corolla at 02h00 and there was nothing he could have done to avoid the collision
because by the time he noticed the insured vehicle, it was about 6 to 7 metres away.
He said he was not sure if the headlights of the insured vehicle were switched on,
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but those of his own vehicle were on. When his counsel asked if he could have done
anything to prevent the collision, he said there wasn’t and did not elaborate further.
Upon cross-examination he gave the same response but indicated that there were
trees on the side to which he would have swerved, so instead, he hit his brakes.
[29] There is no evidence presented to dispute that the insured driver was driving
on the incorrect lane. Mr Mhlanga’s submission in his heads of argument to the effect
that there might have been no second vehicle involved at all was not put to the
plaintiff during cross -examination. Furthermore, the plaintiff explained why he could
not take evasive action upon seeing the vehicle that close. One could think of
several ways in which he could have warned the insured driver such as hooting or
flashing lights or even swerving to the right. But all these should be viewed against
the facts of the case and especially the proximity between the two vehicles at the
time the plaintiff noticed the insured vehicle. The defendant cannot rely on the
contentions emanating from the plaintiff’s own testimony to reduce its liability. The
same test would have to be applied to establish contributory negligence on the part
of the plaintiff, namely whether a diligens paterfamilias faced with the same
circumstances would have foreseen the possibility of his omissions causing an injury
leading to patrimonial damages.
[30] It is therefore my considered view that the plaintiff has discharged the onus of
proving liability on the part of the defendant and that his conduct or omission under
the circumstances ventilated before court was not a sufficiently proximate cause of
the accident for purposes of apportionment. In the premises, the defendant is 100%
liable for the plaintiff’s proven or agreed damages. The insured driver was the sole
cause of the accident that occurred on 4 September 2022.
[31] Consequently, the following order is made:
[31] Consequently, the following order is made:
1. An order of separation of issues in terms of Rule 33(4) of the Uniform Rules of
Court.
2. Adjudication of Quantum is postponed sine die.
3. The defendant is liable for payment of 100% of the plaintiff’s proven or agreed
damages arising from the accident that occurred on 22 September 2022.
4. Costs shall be costs in the cause.
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___________________
L J N BAM
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
APPEARANCES
FOR THE PLAINTIFF: ADV. M MHLANGA
INSTRUCTED BY: MPHAHLELE M R ATTORNEYS
POLOKWANE
CONTACT DETAILS: 015 – 291 2512 / 064 515 7478
info@mphahleleattorneys.com
FOR THE DEFENDANT: MR N MHLANGA
INSRUCTED BY: STATE ATTORNEY, MBOMBELA
CONTACT DETAILS: 060 997 4619 / nkosingiphilem@raf.co.za
DATE OF HEARING: 9 June 2026
DATE OF JUDGMENT: 6 July 2026