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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, MIDDLEBURG)
Case no.: 4227/18
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
Date: 04/08/2026
Signature
In the matter between:
R[...] S[...] E[...] O.B.O
R[...] S[...] N[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
Heard : 23 March 2026
Coram : MALOWA AJ
__________________________________________________________________________
JUDGMENT
___________________________________________________________________________
MALOWA AJ
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Delivered : This judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for hand-down
of the judgment is deemed to be 31st July 2026 at 10:00
INTRODUCTION
“In a case such as this, where the matter is opposed and issues have been argued, litigants
are entitled to be informed of the reasons for judge's decision. Moreover, a reasoned
judgment may well discourage an appeal by the loser. The failure to have reasons may have
the opposite effect”.
– JH Botes and Lady Grey (Pty) Ltd v Nedbank Ltd (Corbett, Hoexter JJA and
Howard AJA; heard on 17 March 1983 and judgment delivered on 29 March
1983).
1. This is a loss of support matter. The parties agreed to argue the matter on
documents filed on Caseline only. The plaintiff’s legal representative was Mr. H.
Nkabinde instructed by Komane Attorneys while the defendant was the Road
Accident Fund which instructed Advocate L. Maleka. The insured driver was one
Freddy Masilela and was the sole independent and an eye witness. The merits
and quantum in this matter were not subject of dispute but only loss of support.
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2. The dispute was brought by the plaintiff on her personal capacity and also on
behalf of the minor child, as a grandmother and guardian of the minor child
called, N[...] R[...]. It is a claim for a loss of support emanating from the death of
plaintiff’s son P[...] L[...] R[...] who died in a motor vehicle accident collision
involving the motor vehicle with registration number E[...] he was driving and that
of an insured driver with registration number D[...] on the 27th August 2012 at
about 13H00 on Stoffberg Road, Middleburg, Mpumalanga Province.
3. The Plaintiff has in terms of section 17(1) of the Road Accident Fund Act 56 of
1996 approached the court to show negligence as a form of fault that give rise to
liability on the part of the defendant. The slightest degree of negligence that he
intended t o show will be sufficient to satisfy the requirement of negligence to
render the Defendant liable.
4. T he p laintiff’s legal representative argued that the insured driver had
negligently contributed to the accident because in the insured driver’s own
written statement made to the police he stated something that shows that he
was negligent to a particular degree that constituted at least one percent
negligence. This alleged admission of negligence as stipulated by the plaintiff’s
legal representative emanat e from the fact that the insured driver breached at
least one of his duties as he said he saw the deceased vehicle “coming to his
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direction”, but n nonetheless failed to avoid the accident by doing what a
reasonable person under the prevailing circumstances be capable of reasonably
foreseeing the damage flowing from his negligent act and must also take
reasonable steps to prevent damage from occurring.
The plaintiff's legal representative has submitted that there are three grounds
upon which the defendant insured driver was negligent, and that he failed to be
evade the collision , he drove at excessive speed, and he failed to apply brakes
in time , adequately or at all. It is said the evidence relied upon for such
submission includes reliance on the insured driver's statement.
4. The plaintiff’s legal representative further argued that because the insured
driver said he saw the vehicle coming to his direction, he was supposed to do
something positive in time to avoid the said collision. Furthermore because t he
insured driver said he assumed that the deceased driver lost control of the
vehicle that called for him automatically to act in such a manner that he will
avoid the accident because he himself was still in control of the motor vehicle he
was driving.
5. Furthermore it was stated by the plaintiff’s legal representative that the
insured driver ultimately swerved the motor vehicle he was driving to the right
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side of the gravel part of the road, while trying to apply brake, but did not do that
in time, to avoid a collision.
6. The plaintiff’s legal representative further alleged that it could not be true that
the insured driver was driving at a speed of about 80 km per hour as he would
have stopped quickly and near the point of impact than where his motor vehicle
came to a standstill . The plaintiff’s counsel said it would not have been possible
to drag the deceased driver’s vehicle for about 100 meters from the spot the
point of accident impact.
7. The plaintiff’s counsel alleges that because there were no immediate evasive
maneuver or steps taken by the insured driver according to him that shows
contributory negligence on his part.
THE DEFENDANT’S CASE
8. On the other hand, t he defendant’s legal representative alleged that the re is
no case to answer, based on number of reasons and as such she applies for
absolution from the instance quoting grounds which she identified as flaws from
the plaintiff’s case.
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9. She stated that the plaintiff’s case is made up from the ba r by the legal
representative. She s aid this is so because in the particulars of claim , the
plaintiff failed to allege the defendant’s factual wrongful , omission or commission
as currently argued contrary to what is stated in the documents.
10. There was no allegation of failure of the insured driver to take reasonable
step in correlation with a reasonable driver and furthermore there was also no
evidence presented to show that had the insured driver taken appropriate
measure timeously as alleged to evade collision , he would have succeeded in
so doing.
Madlala v Road Accident Fund (RAF) (65311/17) [2025] ZAGPPHC 153 (14 February
2025)
11. It is also trite that no onus rests on the defendant to establish, on a balance of
probabilities, the correctness of his explanation as to the circumstances whic h led to the
event's occurrence.
Guardian National Insurance Co Ltd v Saal 1993 (2) SA 161 (CPD).
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12. Defendant’s legal representative argued that the insured driver was right in
his lane having the right of way. She further stated that the insure d driver acted
in a state of sudden emergency or an eminent danger.
13. The defendant’s legal representative argued that there is absence of
evidence on material facts and there is no demonstration of material evidence to
collaborate it. She argued that Rule 18 (4) of the Uniform Rules provides that;
“Every pleading shall contain a clear and concise statement of the material facts upon which
the pleader relies for his claim, defense or answer to ant pleading as the case may be with
sufficient particularity to enable the opposite party to reply thereto”.
14. It was argued by the defendant’s counsel that, under the plaintiff’s particulars
of claim the defendant does not seem to know against whom the case is as
there is no blameworthiness against anyone . She further stated that the plaintiff
had acted contrary to the aforesaid Rule and while having done that plaintiff
bring new evidence from the bar to make up for omitted material information
critical for the case.
15. She pointed out that in the particula rs of claim there is no where it is
stipulated that the plaintiff has lost control of the motor vehicle and without
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amending the particulars of claim that allegation cannot stand. It was submitted
that the plaintiff has failed to discharge the onus of proof on the balance of
probabilities and her case should be dismissed alternatively absolution from the
instance be granted. She stated that the case that the plaintiff put in court is not
the same as the one the defendant was called to answer, and ordinarily one
should stand by her own case.
16. The defendant’s legal representative further argued fact that the insured
driver could not stop the vehicle to a standstill for a distance of about 100 meters
on a flat surface cannot be regarded as a sign of over speeding and or
negligence on his part. The defendant’s counsel stated that while the insured
driver had stipulated that he drove at a reasonable and specific speed contrary
the plaintiff’s counsel’s submission from the bar.
At the close of the plaintiff’s case, the defendant had applied for absolution from
the instance.
ANALYSIS OF FACTS
17. In consideration of the defendant’s application for dismissal of the plaintiff’s
claim, a test had to be applied. The test for absolution to be applied by the trial
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court at th e end of the plaintiff’s case was formulated in Claude Neon Light s
(SA) Ltd vs Daniel 1976 (4) SA 403 (A) at 409 G -H and applied at the end of
Plaintiff’s case in Gordon Lloyd Page and Associates v Rivera and Another 2001
(1) [SCA] at 92E-93A.
“…When absolution from the instance is sought at the close of the plaintiff case the test to be
applied is not whether the evidence led by the plaintiff established what will finally be required
to be established , but whether there is evidence upon which a court applying its mind (not
should ,nor ought to) find for plaintiff ”.
Also see Gascoyne vs Paul and Hunter 1917 TP D 170 at 173. Ruto Flour
Mills (Pty) Ltd Adelson (2) 1958 (4) SA 307 (T).
18. The rule requires the material facts replied upon to be stipulated clearly and
concisely. The fact and contents relied upon is if it is from a statute, it must be
pleaded, not the evidence to be used in support of fact.
19. A defendant may apply to be absolved from the instance, if the plaintiff at the
close of their case for the plaintiff and after the conclusion of the whole case , the
plaintiff has not mad e out a prima facie case in the sense that there is evidence
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relating to all elements of claim to survive absolution because without such
evidence, no Court could find for the Plaintiff.
Marine & Trade Insurance co. Ltd vs Van Der Schuff 1972 (1) SA 26 (A) at
379-38A, Also Schumidt Bewysreg 4th edition at 91 to 92.
20. The defendant argued that plaintiff has not make out a case for the relief
sought. Furthermore it was submitted that he failed to prove that contributory
negligence on the part of the insured driver as there is no evidence relating to all
the elements of the claim. The question may be, whether there is evidence upon
which a reasonable man might find for the plaintiff.
21. The defendant’s counsel argued that there is no indication of omission on
the defendant’s part which makes him negligent. The plaintiff’s legal
representative alleged that the insured driver saw (from the statement ) “the
deceased driver coming to him”. The acting out of emergency cannot be a fault
because number of factors could have an impact on such conduct, to wit;
- the thinking that the driver or deceased’s vehicle could return to its correct
lane.
- the incident might have happen as a sudden emergency
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22. The defendant’s counsel argued that the deceased was 100% responsible
for the accident and even with proverbial being Solomon’s wisdom under the
insured driver’s position, nothing could have been done to avoid the collision.
It was argued on the defendant’s part that if the deceased as a driver lost control
of his own vehicle, that is the primary cause of the accident and it cannot be the
inured driver’ s problem to have advance driver’s skill s to avoid accident with
abilities he doesn’t have and couldn’t brainstorm them under a split of a second.
It’s argued that the insured driver acted as a reasonable person and even if he
could have a choice, he respectively saw deceased’s vehicle with sudden
emergency then heard a bang and stopped immediately.
23. The defendant’s counsel argued that the plaintiff had presumed that there
was a high speed allegedly driven by the insured driver. She further argued that
there was supposed to be an expert report filed on the issue of speed a nd or
accident re -construction on how accident happened, but instead the plaintiff’s
legal representative presented the argument as if it is an evidence from the bar.
24. The defendant’s coun sel argued that the defendant would only have been
liable if the accident happened as a result of the contributory negligence on the
part of the insured driver and in casu there is no such evidence. She quoted the
case of Madlala vs RAF where the driver lost control of the motor vehicle and hit
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an object due to his own lapse, prima faerie the evidence therein shown that the
driver has committed negligence on his own.
25. The court asked plaintiff's legal representative , to clarify what makes him
assume that the insured driver drove at an excessive speed, but not doing that
based on established fact or available information . He stipulated that the fact
that the vehicle of the insured driver couldn't stop his vehicle within 100 m eters
while the deceased's vehicle was stuck under neath it, is evident of the high
speed he was driving.
26."The court must decide whether the plaintiff has, on the face of the evidence
presented, and established a prima facie case covering all the elements of the
claim. If she has, absolution must be refused, if she has not, the court must then
consider whether it is in the interest of justice to end the litigation at this stage or
to continue regardless and require the defendant to present evidence.
Ultimately, the court exercises a discretion to grant or refuse absolution.
Although the discreti on should be exercised cautiously, when the occasion
arises, and justice so demands, absolution should be granted".
Makhana J Labour Court -Thandiwe Mosango & Road Traffic Management
corp. (JS755/22) 2026 ZALCJHB 153 (18 May 2026)
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Heard on the 7- 8 May 2026
27. The question is whether the plaintiff has met the low threshold required at
the close of her case namely, whether there is evidence upon which the court,
applying its mind reasonably to such evidence, could or might find in her favour.
This approach was set out in the Gordon Lloyd & Ass having been formulated in
the case of Claude "or upon which a reasonable member might find for the
plaintiff"
Gascoyne v Paul and Hunter 1917 TPD at 173, Rusto Flour Mills (Pty) Ltd v
Adelson (2) 1952 (4) SA 307 (T)
Without such evidence no court could find for the Plaintiff
Marine & Trade Insurance Co. Ltd vs Van der Schyff 1972 (1) SA 26 (A) at
37 G – 38 A.
28. The above may be similar to the current case, where the p laintiff has failed
to establish an essential elements of the claim. There is no single witness called
by the plaintiff to prove her case, despite being in a position to do so.
There is no other probabilities that were ventured into in a form of evidence
which include but not limited to whether the vehicle was loaded or overloaded
with commodity or not.
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29. As con tained in the summons and plea, the hearing of evidence brought
forward by the parties; through their legal representatives were heard in
argument. Where in an action, a party chooses to appear at the trial but elect not
to lead evidence in order to satisfy the court that he or she is entitled to
judgment on the issues raised by those claims, but argue through agreement
with the op ponent the burden of proof still remain despite the plea he is
challenging appears or is considered bare denial. The same goes to how the
defendant’s plea was.
The plaintiff did not comply with the provisions of Rule 18(4) and had brought
new evidence from the bar. There was no pleading of the deceased’s motor
vehicle having lost control. The plaintiff has failed to prove her case on the
balance of probabilities.
Molusi vs Voges no. 2016 (3) SA 370 CC
It was further held that the evidence of negligence is mandatory requirement to
be successful in one’s claim for a compensation in terms of Section 17(1) of the
RAF Act as held in the case of Kekana N.O. vs Motshwaede vs RAF
206/2017/ 2018 ZASCA 75(31 May 2018) where it was stated that ”…. liability
was to be determined based on the evidence of a single eye witness called by
the plaintiff ”. Onus to pro ve liability of the claim, to es tablish liability , the
evidence must determine both liability and quantum.
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Plaintiff bear the onus to prove both liability and quantum by demonstrating that
the plaintiff based the minor child has legally enforceable right to claim and also
negligence or a wrongful act on the part of the insured driver that caused or
contributed to the collision which resulted in the death of the deceased”
“The court has in the context of Constitutional chall enges to legislation,
acknowledge the importance of accuracy in the pleadings”
Phillips and others vs National Public Prosecutors 2005 ZACC 115 2006 (1)
SA 505 (CC) that
30. The duty is cast upon the plaintiff as the litigant, in order to be successful, by
satisfying the court that’s she is entitled to succeed on her claim. The incidence
of the burden of proof in this sense is on each issue a matter of substantive law.
The plaintiff has duty to adduce evidence which indirectly compel the defendant
to combat a prima facie case if any, made by her opponent. The plaintiff’s duty
to adduce evidence is essential to ensure that in the most logical order and
makes the defendant convincingly respond thereto by dispensing with the
evidence which could support a finding in her favour.
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31. It is trite that a party who asserts has a duty to discharge the onus of proof.
In African Eagle Life Assurance Co Ltd v Cainer, 1980 (2) SA 234 (W) at 237D -
H, Coetzee J applied the principle set out in National Employers’ General
Insurance Association v Gany 1931 AD 187 as follows: ‘Where there are two
stories mutually destructive, before the onus is discharged, the Court must be
satisfied that the story of the litigant upon whom the onus rests is true and the
other false. It is not enough to say that the story told by Clarke is not satisfactory
in every respect, it must be clear to the Court of first instance that the version of
the litigant upon whom the onus rests is the true version.
32. The approach to be adopted when deali ng with the question of onus and the
probabilities was outlined by Eksteen JP in National Employers’ General v
Jagers, 1984(4) SA 437 E at 440 D , as follows: ‘it seems to me, with respect,
that in any civil case, as in any criminal case, the onus can ordinarily only be
discharged by ad ducing credible evidence to support the case of the party on
whom the onus rests. In a civil case the onus is obviously not as heavy as it is in
a criminal case, but nevertheless where the onus rests on the plaintiff as in the
present case, and where there are two mutually destructive stories, he can only
succeed if he satisfied the Court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable, and that the other version
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advanced by the defendant is therefore false or mistaken and falls to be
rejected. In deciding whether that evidence is true or not the Court will weigh up
and test the plaintiff’s allegations against the general probabilities. The estimate
of the credibility of a witne ss will therefore be inextricably bound up with a
consideration of the probabilities of the case.
33. However in casu the parties did not testify for the Court to determine their
witness’ credibility. In casu if the balance of probabilities favours the plaintiff,
then the version of the plaintiff is probably true. If however the probabilities are
evenly balanced, that is it and do not favour the plaintiff’s case or the
defendant’s, the plaintiff cannot succeed. If the plaintiff’s case was nevertheless
believable and the court is satisfied that her evidence is true and that the
defendant’s version is false, then she was to succeed.
34. The defendant's counsel indicated that she request that absolution from the
instance be granted with costs. The basis of what she said was that there was
no case against the defendant. She said the plaintiff has failed to even make a
prima facie case, the evidence is inherently unacceptable to find liability on the
defendant, and there is an absence of material facts, i.e., t here is no
demonstrable material evidence to corroborate the claim.
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35. There is no admission or presumption in favour of the plaintiff for which the
burden could have shifted to the defendant. If the duty was on the defendant
and she failed to discharge the burden of proof or the duty to adduce evidence,
the proper order would be judgment for the plaintiff’s favour.
36. The defendant basically in her argument sought absolution from the instance
at the close of the plaintiff’s case. The test to be applie d is whether the evidence
established, what would finally be whether applying its mind reasonably to such
evidence, could or might (not should, or ought to) find for the plaintiff. Absolution
was asked for at the end of the plaintiff’s case. Renouncing for the time being
any tendency to, he is bound to speculate on the conclusion at which the
reasonable man of his conception.
37.This is the process of reasoning which, however difficult its exercise. In
deciding whether absolution should be granted at the close of the plaintiff’s
case, it must be assumed that in the absence of very special considerations,
such as the inherent unacceptability of the evidence adduced, the evidence is
true. Questions of credibility should not normally be investigated at this stage of
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the proceedings, except where the witnesses have palpably broken down, and
where it is clear that what they have stated is not true.
38. There was no evidence of speed limit or sign at the area of the accident vis -
a-vis speed driven by the insured driver. The insured driver was not called to
testify nor an expert called to give relevant opinion as to the accident cause d by
the plaintiff. On the defendant's version, the Plaintiff's particulars of claim alleges
loss of control by the deceased driver and the defendant cannot be made to be
liable by conduct of the deceased driver.
39. Having considered the summons, plea, pre -trial minutes, the plaintiff's
evidence and parties’ legal representative's arguments, the conclusion that the
claim lacked the e lement of negligence on the part of the insured driver is
inevitable. The plaintiff's evidence which has no single witness failed to establish
even a basic case of negligence.
insured driver acted in like any reasonable driver would have acted, having put
in that position with the same circumstances.
40. The evidence advanced on plaintiff’s behalf is failing to establish from an
informed or expert's opinion that the i nsured driver did not apply brakes or
sufficiently and/or he was driving at an excessive speed due to distance the
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insured driver travelled further after the accident to a point where his vehicle
stopped with the vehicle driven by the deceased b eing under the truck. The
argument was not supported by the particulars of claim and the plaintiff's
evidence.
50. There is no evidence that the motor vehicle accident happen with a
contributory negligence of the insured driver. Averments of unsubstantiated
standardized allegations of negligence like “He failed to keep a proper look out;”
and or “He failed to apply brakes of his vehicle either timeously, adequately or at
all;”, if they ar e not supported by evidence, they are of no use. The material
averment for making a proper case from the onset by the plaintiff should not be
equated to a box-ticking exercise.
51. It is evident from the above that the plaintiff failed to show the defendant’s
contributory negligence, not only on the particulars of claim, but also on
evidence relied. The standard allegation of negligence by the insured driver as
stipulated above were cited with no evidence to support them. The plaintiff’s
counsel had difficulty in showing the contributory negligence of the defendant,
and ended up being unsuccessful.
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52. Where the plaintiff has failed to establish an essential elements of the claim
which is negligence of the insured driver, the Court is bound to either dismiss
the claim or where there is potential to amplify the averments made, give her an
opportunity to do so. H erein the pl aintiff did not even call a sin gle witness to
prove her case, despite being in a position to do so without hindrance. The
insured driver in this case cannot be held accountable because there is
insufficient evidence to fin d in favour of a plaintiff. Consequently this court has
no choice but to order absolution from an instance because it is not satisfied that
the evidence presented by the plaintiff warrant the order in her favour.
53. Absolution should be ordered in the interest of j ustice after having heard
evidence for the plaintiff and the rebuttal of evidence through argument by the
counsel for the defendant.
54. In the circumstances there i s no evidence upon which the Court could
reasonably find in favour of the plaintiff . Accordingly, the defendant should be
absolved from further proceedings at his stage. Evaluation of the evidence
adduced by the plaintiff at the trial is required.
55. In the premises, the defendant’s application for absolution from the instance
at the close of the plaintiff’s case ought to succeed in relation to the plaintiff’s
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alleged contributory negligence for loss of support claim against the defendant
emanating from the insured driver’s commission or omission.
56. The stance taken by the defendant and the procedure available is equivalent
to Section 74 of the Criminal Procedure A ct 5 of 1977 which allows badly
formulated “… cases to be weeded out, thus protecting scare judicial resources
from being spent on cases which do not merit further judicial attention. In this
way, absolution serves the interests of justice and promot es the more efficient
and effective administration of justice”.
Nico Van Wyk vs V enter e t al by Moosa AJ CASE NO 21072/2010 Western Cape
Division heard on the 12 May 2025 delivered on the 12 May 2025
57. In the current matter as in the above case, at the end of the plaintiff’s case,
there is an insufficiency of cogent evidence, or the absence of adequate
testimony, so that no order ought to be made in the plaintiff’s favour in respect of
the claim.
58. “Therefore, what the defendant in casu seek at this s tage of the trial is to be
freed from blame in relation to the plaintiff’s claim …”, based on allegation of
contributory negligence without substance.
Nico Van Wyk vs Venter et al
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59. “If granted, absolution would have the effect of dismissing the claim in
respect of which it was granted. However, since absolution does not lead to re
judicata, the plaintiff would be able to re -file his claim afresh, presuming there is
no legal impediment for him to do so (such as, operation of prescription.)”
Nico Van Wyk vs Venter et al
60. “The defendant argued that the plaintiff is required to make prima facie case
and it has failed to do so. Its f ailure justifies defendant in br inging this
application. Defendant argued that the plaintiff failed to call witnesses who were
directly involved …” and make averments in his particulars of clai m showing the
fault or negligence on the insured driver as a basic but critical requirement for
liability. “… and this failure is fatal to the plaintiff’s case”.
Nissan SA Pty Ltd vs Sen yatsi B Phasha by Ntanga AJ Gauteng Division, Pretoria 22
March 2024.
61. Accordingly, and assuming the plaintiff can prove the one percent of the
alleged negligence on the part of the insured driver, the plaintiff’s remedy lay in
the manner in which she present material facts and present evidence that show
fault or wrongdoing on the part of the insured driver.
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62. For all the above reasons, I find that the defendant is entitled to an order for
absolution from the instance in relation to the plaintiff’s c laim. It is not in the
interest of justice in these circumstances to permit this claim to proceed further
in its current form.
COSTS
63. When a defendant is absolved from the instance, he is rightfully regarded as
a successful party , considering the need to determine the issue of costs . The
general rule is that the successful party should be awarded costs, however the
court can in its exercise of its discretion, deprive a su ccessful party of costs,
unless there are good reasons for ordering costs to be paid by the unsuccessful
successful party.
64. The deprivation of costs can be partially or wholly. However such discretion
of the court to deprive the successful litigant of his costs cannot be exercised
arbitrarily, equally the awarding of costs cannot be made with blindfold. Several
consideration like the conduct or negligence of the successful litigant are taken
into consideration.
65. It is imperative for the court to regards to the doctrine of effectiveness on
issuing of costs where the unsuccessful party is unemployed, elderly and or a
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minor child who cannot be in a position to satisfy the order that would have been
granted against him or her on costs. Therefore moral consideration is one of the
relevant factors in exercising the court’s wide discretion on awarding of costs.
66. One of the grounds upon which the court can order that the successful party
should not be awarded costs despite having been a successful party, it is where
he would have had the plaintiff’s claim dismissed at an earlier stage , but chose
not to take that step. In casu it cannot be said that the defendant should have
had the plaintiff’s case dismissed earlier. However that is not the only instance
where costs are no t granted to a successful party, but it could have done
something to except or place its defence in its plea.
67. In this case the question may be whether the decision to impose costs on
the plaintiff will not be a misdirection by the court as per the principle adopted in
the matter of Biowatch Trust v Registrar Gener ic Resources and others 2009
(10) BCLR 104 (CC) and subsequently reaffirmed in 25 th May 2026 matter of
MVC costs appeal judgment. This is where on appeal by MVC regarding May
2024 proceedings findings on cost order which was adverse on it was appealed
against and it was set aside. The plaintiff had approached this court to enforce
her Constitutional right as it was the case in Biowatch Trust matter. Although in
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Biowatch Trust matter the Constitutional right challenged was public interest as
against the private right interest in this matter, but the principle remain the same.
68. Similarly it was in the public interest to challenge the Constitutionality of an
Act of Parliament where there was a lacuna on the amendment of Electoral
Matters Amendment Act 14 of 2024 which happened without established
financial thresholds, which in itself created an ongoing risk of unregulated and
undisclosed funding and that the situation necessitates prompt intervention to
maintain transparency and acco untability in political f unding subsequent to the
desire to have Electoral Matters Amendment Act 14 of 2024 come into
operation.
69. Further difference relevant herein may be state’s legal fees vis -à-vis
statutory body like the defendant herein. The principle remain identical,and
enforcement of C onstitutional right . The preamble of the C onstitution of the
Republic of South Africa, 1996 which intend to “… improve the quality of life of
all citizens and to free the potential of each person .”, “…. heal the division s of
the past and establish a society based [not only] on democratic value s [but also]
social justice and fundamental human rights ...” cannot seek to make an elderly
person who has a daunting duty to raise a minor child on her deceased son to
pay costs of suit because she was not successful in enforcing her democratic
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rights. The plaintiff’s minor granddaughter seek to enforce her Constitutional
right to health care, food, water and social security including education. She was
not successful in enforcing her democratic right s, although it may be in the
interim.
70. The plaintiff's attempt to enforce the Constitutional right doesn't amount to
abuse of legal process, frivolous or vexatious litigation to the unsuccessful party
in this instance.
71. The imposition of costs of litigation, even if not punitive in nature, can inhibit
a litigant to assert her legal C onstitutional rights and responsibilities . In terms of
Section 38(a) of the Constitution, she is empowered to approach the court acting
on behalf of anothe r person who cannot act in her own name (herein the minor
child). Perhaps it may be f or those reasons, the defendant should be saddled
with costs incurred as there should be no cost order against the plaintiff for
justifiable reasons.
72. “An abuse of judicial process is evinced when a party conducts litigation in
an unreasonable manner to the prejudice of those who are materially forced to
defend their interests. It is such conduct that has been viewed by courts as a
justifiable basis to visit the culpable litig ant wi th a punitive costs order ” “...and
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ordinarily there should be no adverse costs order against any private parties
who were forced to enter the fray (Biowatch Trust matter). Force in this case is
not on a defendant, but even on a plaintiff who is duty -bound to approach court
to assist the minor child.
73. There is no outright failure on the defendant's side except that there was a
bare denial in its plea and or lack of defence on its part which may have partially
also contributed to plaintiff’s conducting or handling the matter.
74. Although legal consideration is made on the matter per costs, in the exercise
of its wide discretion as to costs, the court may in particular circumstances
attach great weight to the moral obligation (or equity) of the parties.
Herbstein & van Winsen – The Civil Practice of the High Courts of South Africa Vol 2
(6th Edition) – Cilliers, Loots & Nel
75. The said moral consideration needs to be connected to the litigation in
question as relevant to an award of costs, and so it i s for that reason that the
court chose to deprive a successful claimant of costs. The court's discretion to
order costs is not restricted to punitive costs or dishonesty; it includes all cases
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in which special circumstances or considerations justify the granting of such an
order.
76. There are good reasons why costs ought not to follow the results. In making
this determination, I had regards to different factors which include largely the re -
affirming plaintiff’s Constitutional.
77 Consequently I make the following Order;
(a) The defendant’s application for absolution from the instance succeeds
(b) Absolution is granted in respect of plaintiff’s claim,
(c) There is no order as to costs.
.
M. Malowa
Acting Judge of the High Court
Mpumalanga Middleburg
Appearances;
For the Plaintiff: Mr. H Nkabinde
Instructed by: Ntshosa Madiba Inc.
For the Defendant: Ms. L Maleka
Instructed by: Road Accident Fund
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