IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO: 2364/2024
In the matter between:
SIYANDA XOKI Plaintiff
and
ROAD ACCIDENT FUND Defendant
________________________________________________________________
JUDGMENT
________________________________________________________________
RUSI J
[1] The plaintiff sued the Road Accident Fund (the Fund) for damages
resulting from a collision that occurred on 24 May 2023 at or near Matanzima
Road in KwaNobuhle township, Kariega, Eastern Cape. On that occasion an
unidentified vehicle (the vehicle) driven by an unidentified driver collided with
him. At the time of the collision, the plaintiff was a pedestrian. He alleges that
the collision was caused by the sloe negligence of the unidentified driver in
driving the vehicle.
[2] Resulting from the alleged negligent driving of the vehicle by the
unidentified driver, the plaintiff sustained bodily injury. He now claims against
the Fund under several heads the amount of R2 610 000.00 in damages.
The pleadings
[3] In his particulars of claim, the plaintiff pleaded the following material
facts in support of his claim: on or about 24 May 2023, at or near Matanzima
Road in KwaNobuhle township, Kariega, Eastern Cape, an unidentified vehicle
driven by an unidentified driver collided with him while he was a pedestrian. As
a result of the collision, he sustained serious bodily injuries. The collision was
caused by the sole negligence of the unidentified driver. The several grounds of
negligence relied upon by the plaintiff are, inter alia, that, the unidentified
driver:
(i) failed to keep a proper lookout;
(ii) drove the unidentified vehicle at an excessive speed;
(iii) failed to apply brakes timeously or at all;
(iv) failed to avoid the collision when by the exercise of reasonable care and
skill he/she could and should have done so;
(v) failed to sound a warning concerning his/her oncoming approach;
(vi) failed to stop after colliding with him.
[4] In response to these averments, the Fund, in its plea, alleged that “it has
no knowledge of them, cannot admit or deny them and put the plaintiff to the
proof thereof.”
The trial
[5] The trial of this matter proceeded only on the question of the Fund’s
liability for the plaintiff’s claim. Quantum of the plaintiff’s damages and other
issues raised in the claim were separated for determination at a later stage
pursuant to an order granted by this Court on 05 March 2025 in terms of
Uniform Rule 33(4).1
The issues
[6] The issues to be determined by this Court as formulated by the parties in
their minute of the pre-trial meeting dated 03 October 2025 are:
(a) whether the collision occurred as pleaded by the plaintiff; and
(b) whether that collision, if it occurred, was due to the sole negligence of the
unidentified driver of the unidentified vehicle.
The question of onus and duty to begin.
[7] As envisaged in Uniform Rule 39(13), the plaintiff bore the onus to prove
his claim and thus the duty to begin adducing evidence.
The case for the plaintiff
(a) Ms Xoki-Godoma’ s evidence
[8] The plaintiff adduced the evidence of Ms Xoki -Godoma (Ms Godoma)
who identified herself as his aunt. Ms Godoma testified that it was around
17h00 on 23 May 2023 when a male person unknown to her arrived at her home
and reported that the plaintiff had been involved in an accident. The report came
not long after the plaintiff had left her house for work. She rushed to the scene
of the accident in her vehicle. On arrival thereat, she found the plaintiff lying
unconscious on the side of the road. He was bleeding from his head and there
was blood on the road surface where he laid. The onlookers that had gathered at
the scene indicated to her that the plaintiff was knocked down by a vehicle
which dragged him along the road. She did not know any of the persons
1 Per Gqamana J.
gathered at the scene. Her attention was on getting the plaintiff help. The
vehicle that collided with the plaintiff did not stop. She phoned the police and
the ambulance, but none arrived. She resolved to convey the plaintiff in her
vehicle to the Port Elizabeth Provincial Hospital. From this hospital, the
plaintiff was transferred to the Livingston Hospital where he received further
treatment.
[9] It further emerged from Ms Godoma’s testimony that she and the plaintiff
do not live in the same house; the plaintiff lives in his own house. Asked by Mr
Dlamini in cross-examination how she came to know that the plaintiff had been
leaving for work if they do not live together, Ms Godoma explained that the
plaintiff had gone to her house to fetch lunch.
(b) The plaintiff’ s evidence
[10] The plaintiff’s evidence was that at the time of the accident he was
employed at the poultry production company named Sovereign Foods. After he
left Ms Godoma’s house, he made his way to work. He was a pedestrian and he
had to cross Matanzima Road in KwaNobuhle. The time was around 17h00 -
18h00 and there was still light. He was dressed in blue jeans and a blue jersey.
[11] The road was flat and narrow with two lanes running in opposite
directions. The shoulder of opposite side of the road to which he was to cross
was paved with small bricks. The pavement was on the same level as the road
surface. Before he crossed the road, he saw an Avanza 2, brownish in colour
approaching from a distance of approximately 30 metres. The Avanza’s path of
travel was in the lane on the side of the road to which he intended to cross and
there was no vehicle traveling in front of it. He was he only person crossing the
road at the time. There were no other vehicles travelling on the side of the road
he was to cross from.
2 A multi-purpose vehicle that seats a maximum of 7 passengers.
[12] He was unable to estimate the speed at which the Avanza was driven. As
he was rushing to work, he believed that he could safely cross to the other side
of the road. There was nothing obstructing the view of the driver of the
oncoming Avanza. He had traversed the greater part of the roadway when, two
steps away from the pavement, the Avanza collided with him. It hit him on his
lower back. After colliding with him, it dragged him across the road. He lost
consciousness and regained it in hospital. He remained at the Livingston
Hospital for four months. He was unable to identify the registration numbers of
the vehicle or the driver as the vehicle did not stop after colliding with him.
[13] Before the collision, he did not hear the Avanza’s hooter as a warning of
its approach; nor did he hear the screeching of the tyres signifying the driver’s
attempt to apply brakes. In his illustration of how the collision took place, the
plaintiff adduced the evidence of a sketch plan and key thereto. The sketch plan
which bears the KwaNobuhle South African Police Service (SAPS) case
administration system number – CAS 56/07/2023 was admitted as Exhibit “A”.
It was indicated that the sketch plan was utilized for illustrative purposes, since
the plaintiff would not call the police officer who compiled it. The point of
impact is depicted on the sketch plan as being within the parameters of the
roadway. The distance between the baseline of the surface and the point of
impact measured 2 metres. The point where the plaintiff landed after the impact
measured 2.5 metres from the point of impact.
[14] The plaintiff referred this Court to several paragraphs of the medical
report dated 12 October 2024 and compiled by Dr Chris van der Walt, a Plastic
and Reconstructive Surgeon. 3 The report indicates in those portions that on 27
May 2023 the plaintiff underwent a debridement of his bilateral calcaneus (an
injury to the heel bones) and posterior limbs with below knee back slab casts
injury to the heel bones) and posterior limbs with below knee back slab casts
3 Page 74 to 97, in particular, page 79 of the said report, paragraphs 5.2.15 to 5.2.19.
applied in theatre. On 05 June 2023 he underwent Surgery for re -debridement
and application of vacuum dressings to both his feet. On 08 June 2023 he was
subsequently transferred to the plastic surgery department at the Port Elizabeth
Provincial Hospital for skin graft and flap procedures. On 09 September 2023
he was taken to theatre for a sural flap 4 for the right calcaneus and a skin graft
for the left calcaneus.
[15] Asked in cross -examination how it came about that the vehicle collided
with his lower back, the plaintiff explained that he had been crossing the road at
an angle with his left foot forward and right foot back. Mr Dlamini’s cross-
examination extensively dealt with the circumstances in which the plaintiff
made a decision to cross the road at the time he did. The cross -examination was
presumably intended to establish that the plaintiff crossed the road when it was
inopportune for him to do so and thus exposed himself to the risk of collision
with passing vehicles. I will revert to this aspect later on in this judgment.
[16] Apart from this aspect, the plaintiff was asked to explain the
circumstances in which the sketch plan was drawn considering that he would
have been in hospital at the time it was drawn. His explanation was that his
consultation with the police regarding the collision followed the report which
his aunt had previously made. He is the one who subsequently provided the
police with the details of the accident as they appear from the sketch plan.
[17] The version of the plaintiff that the collision did occur and that resulting
from it he sustained bodily injury was not challenged during his cross -
examination. This concluded the plaintiff’s case. The defendant closed its case
without leading any evidence in rebuttal of the plaintiff’s version.
4 A surgical skin and tissue transfer, used to repair lower leg, ankle and foot.
The parties’ submissions
[18] Counsel for the plaintiff, Mr Frost, submitted that the unidentified driver
of the vehicle had an obligation to keep a proper lookout on the road. In the
light of the plaintiff’s evidence regarding the road layout and the circumstances
in which the collision occurred, there was no reason for the unidentified driver
not to see him as he was crossing the road. The evidence suggests that
unidentified driver failed to take evasive action to avoid the accident. Mr Frost
invited this Court to infer from the fact that the vehicle dragged the plaintiff
across the road after colliding with him that it was driven at high speed. He
criticised Mr Dlamini’s attempt at introducing the unpleaded issue of
contributory negligence. Mr Frost submitted that the plaintiff has discharged the
onus of establishing the Fund’s liability on a balance of probabilities.
[19] On behalf of the Fund, Mr Dlamini emphasized that the onus to prove the
Fund’s liability lies squarely on the plaintiff. He took the view that even though
the defendant adduced no evidence in rebuttal, this Court is entitled to draw an
inference that the plaintiff crossed the road when it was inopportune for him to
do so.
The legal principles and analysis of evidence
[20] Section 17 of the Road Act Fund Act 56 of 1996 (the Act) makes
provision for the Road Accident Fund’s liability for loss or damage suffered by
a person as a result of bodily injury caused by or arising from the driving of a
motor vehicle by any person if the injury is due to the negligent or wrongful act
of the driver. The driver and the vehicle that allegedly collided with the plaintiff
are unidentified; hence, the claim falls under section 17(1)(b) of the Act, which
provides as follows:
‘(b) subject to any regulation made under section 26, in the case of a claim for compensation
under this section arising from the driving of a motor vehicle where the identity of neither the
owner nor the driver thereof has been established, be obliged to compensate any person (the
third party) for any loss or damage which the third party has suffered as a result of any bodily
injury to himself or herself or the death of or any bodily injury to any other person, caused by
or arising from the driving of a motor vehicle by any person at any place within the Republic,
if the injury or death is due to the negligence or other wrongful act of the driver or of the
owner of the motor vehicle or of his or her employee in the performance of the employee's
duties as employee: Provided that the obligation of the Fund to compensate a third party for
non-pecuniary loss shall be limited to compensation for a serious injury as contemplated in
subsection (1A) and shall be paid by way of a lump sum.’5
[21] As the onus bearing party, the plaintiff must establish on a balance of
probabilities that a collision occurred; his injury arose out of the negligent
driving of a motor vehicle; and that there is some connection between the
driving and his injury. 6 In this regard, the defendant need not prove anything.
The question to be answered is whether the plaintiff has, on a balance of
probabilities, discharged the onus of establishing that the collision was caused
by negligence attributable to the insured driver.7
[22] The assessment of the ‘balance of probabilities’ entails more than the fact
that the probabilities favour one party and not the other. The onus resting on the
plaintiff will be discharged if the court is satisfied on a preponderance of
probabilities that his version is true and therefore acceptable, in that it is
probable that the particular state of affairs existed. 8 An assessment of the
probabilities of a case furthermore inextricably entails the determination of the
credibility of the witnesses.9
5 It is not necessary to refer to the provisions of the applicable regulation 2(1) which stipulates a two-year period
within which a claim must be lodged where the driver or owner of the vehicle are unidentified. This issue did
not arise in these proceedings.
6 Kemp v Santam Insurance Co Ltd 1975(2) SA 329 (C) at 330F; Van Wyk v Lewis 1924 AD 438 at 444.
7 Stacey v Kent 1995 (3) SA 344 (ECD) at 352I-J.
8 Schwikkard PJ (et al), Principles of Evidence, 4th Ed, 2016, page 627, at 32.7.
9 National Employers’ General Insurance Co Ltd v Jagers [1984] 4 All SA 622 (E), at 624 -5; Santam Bpk v
Biddulph (105/2003) ZASCA (16 February 2004).
[23] It bears highlighting that there is before this Court one version pertaining
to the issues it is called upon to determine and it is that of the plaintiff. That
being the case, I must still have regard to the pleadings as they stand in so far as
the defence posited by the defendant is concerned, and the plaintiff’s version, as
part of the determination to be made, whether the plaintiff has discharged the
onus that rests on him.
[24] Thus, the fact that the plaintiff’s version was not rebutted by the Fund
does not mean that it must be accepted without further ado. This Court is
obliged to travel beyond the plaintiff’s say so and answer the question whether,
on the conspectus of the evidence, the probability exists that on 24 May 2023
the plaintiff was knocked down by an unidentified vehicle resulting in him
sustaining bodily injury.
[25] I have already stated that the plaintiff’s version regarding the occurrence
of the accident was not challenged in cross -examination. The version of his
aunt, Ms Godoma regarding how she heard of the accident and her proceeding
to the scene where she found the plaintiff lying on the road, injured, was equally
not displaced by the cross-examination on behalf of the Fund. I am satisfied that
both the plaintiff and his aunt adduced acceptable and coherent evidence
regarding the occurrence of the collision. Their evidence must accordingly be
accepted as the truth and thus plausible. This is not the end of my enquiry, for I
must determine whether the negligent driving of unidentified vehicle by the
unidentified driver was the sole cause of the collision as pleaded by the plaintiff.
[26] It is instructive to refer to the work of learned author W.E. Cooper 10
where he states the following regarding a pedestrian’s duty when crossing the
road:
10 W.E. Cooper in Delictual Liability in Motor Law, 1996.
“A pedestrian who intends crossing a road should do so at an opportune moment and he must
exercise reasonable care. He must use his senses to ascertain whether any motor vehicles are
approaching. He should keep a proper look -out; he should acquaint himself with the vicinity
and scan the road so as to ascertain whether any motor vehicle on the road may be an actual
or potential risk to his safety. Usually, a pedestrian will look to the left and to the right before
entering the road. Once he reaches the centre of the road, he should devote his attention to
motor vehicles approaching from his left”.11
[27] The learned author goes on to state as follows regarding the duties of the
driver:
‘A driver is required to exercise reasonable care and vigilance not only towards a pedestrian
he sees, or ought reasonable to see, on or near the road; he is obliged to exercise the same
reasonable care and vigilance towards an unseen pedestrian whose presence he should
reasonably foresee. . .’12
[28] A motorist who sees a pedestrian on the roadway or about to venture
thereon should regulate his driving so as to avoid an accident. The reasons are
not far to seek – there is invariably a reasonable possibility or probability that
the pedestrian might act irrationally by suddenly moving into the vehicle or its
path. This possibility exists for young children, for adults who are plainly drunk,
and may arise in other cases.13
[29] During argument, Mr Dlamini submitted that the court was entitled to
draw an inference of contributory negligence against the plaintiff. In
substantiating this contention, he submitted that the plaintiff crossed the road
when it was inopportune for him to do so. While Mr Dlamini is correct in
suggesting that this Court is entitled to draw such an inference, the present case
is not one where this can be done for the reasons I state below.
11 Ibid page 193-194.
12 Ibid, at page 195.
13 Manual v SA Eagle Insurance Co Ltd 1982(4) SA 352(C) at 357A.
[30] No factual basis was laid by the Fund in its plea and in evidence to
support the contention that the plaintiff contributed to his injury by his own
negligence by crossing the road when it was inopportune to do so. The Fund
pleaded lack of knowledge of what the plaintiff alleged regarding how the
collision occurred and it called him upon to prove his allegations. Subject to
what I state immediately below, I acknowledge that it is usually difficult for the
Fund to secure evidence to controvert the claimant’s allegations in the case of
an unidentified vehicle. This in turn poses a duty on the Court to carefully
scrutinize the evidence presented.
[31] That being so, a party has a duty to allege in the pleadings the material
facts upon which it relies for its claim or defence. 14 It bears restating that
pleadings serve the purpose of:
‘(a) Ensuring that both parties know what the points or issue between them
are, so that each party knows what case he has to meet. He or she can thus
prepare for trial knowing what evidence he or she requires to support his
own case and to meet that of his opponent.
(b) Assisting the court by defining the limits of the action.
(c) Placing the issues raised in the action on record so that when a judgment
is given such judgment may be a bar to the parties litigating again on the
same issues, enabling a party to raise a defence of res judicata if the other
party attempts to raise the same issues.’15
[32] In Fischer and Another v Ramahlele and Others ,16 the Supreme Court of
Appeal held that it is not for the court to raise new issues not traversed in the
parties’ pleadings or affidavits. The exception, which finds no application in the
14 Minister of Safety and Security v Slabbert (668/2009) [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) (30
November 2009).
15 H. Daniels - Beck’s Theory and Principles of Pleading in Civil Actions 6th edition (LexisNexis) pages 43-44.
16 In Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA
395 (SCA) para 13 and 14.
present case, is where the court, on its own motion, raises a question of law that
that appears from the evidence and is necessary for the decision of the case.
Another exception is where the parties expand the issues by the in which they
conduct the proceedings. In either case, the court is bound to have due regard to
regard to the foundational principle of fairness in the conduct of litigation and
the prejudice that may ensue on the part of the litigant against whom that course
may operate.17
[33] Mr Frost referred me to the case of Lwandile Goodman Tena v Road
Accident Fund, a judgment of Eksteen J, 18 in which the learned judge held that
where the defendant did not place the plaintiff’s own negligence at issue by
alleging it, either completely or to a certain degree, it is not open to counsel to
raise it in argument.19
[34] I am in respectful agreement with the sentiments of the learned judge. In
the present matter, similar to the matter of Tena, when counsel for the plaintiff
objected to the cross -examination of the plaintiff on the issue of contributory
negligence which was never pleaded by the Fund, Mr Dlamini abandoned the
cross-examination.
[35] It was open to the Fund to place the plaintiff’s own negligence in the
occurrence of the collision at issue. It chose not to do so. There was, I may add,
always an avenue for the Fund to seek an amendment of its plea since it
appeared that the plaintiff’s counsel was not amenable to the extension of the
issues at trial by the ventilation in evidence of the issue of contributory
negligence. That avenue was not explored.
17 Ibid.
18 Lwandile Goodman Tena v Road Accident Fund , unreported judgment of Eksteen J, Case No. 2866/2024,
Eastern Cape Division of the High Court of South Africa, Gqeberha.
19 Ibid, para 19.
[36] In any event, the issue of contributory negligence is a substantive issue
which is largely fact based. The present case is not one where the issues could
be expanded upon ventilation during evidence in circumstances where the Fund
did not specifically plead it. It was not available to Mr Dlamini to raise the issue
in argument. Mr Dlamini was constrained to concede this fact.
[37] Since there is no direct evidence of how it came about that the
unidentified vehicle collided with the plaintiff; this Court must draw
conclusions in this regard from the evidence adduced. This relates to the
question of the unidentified driver’s negligence. I have already accepted as
probable the version of the plaintiff that the collision occurred as a result of
which he sustained bodily injury. It is trite that in order for the court to draw
inferences, there must be positive proven facts from which such inferences can
be drawn. If there are none, the method of inference fails and what is left is
mere speculation or conjecture. 20 Moreover, the inference sought to be drawn
must be the ‘more natural, or plausible, conclusion from amongst several
conceivable ones’ when measured against the probabilities. 21 ‘Plausible’ in this
context means ‘acceptable, credible, suitable’.22
[38] From the plaintiff’s description of how the collision occurred, it emerges
that he satisfied himself that the roadway was free from oncoming traffic
permitting of him to safely cross. In his version, he was rushing to work. Hence,
it does not appear that he lingered once he entered the roadway. Despite the
existence of the Avanza which was approaching at a distance of 30 metres at the
time the plaintiff entered the roadway, his evidence suggests that he crossed the
road with promptitude. There is, furthermore, no indication that the driver of the
20 S v Essack & another 1974 (1) SA 1 (A) at 16C -E, quoting with approval Caswell v Powell Duffryn
Associates Collieries Ltd [1939] 3 All ER 722 at 733.
Associates Collieries Ltd [1939] 3 All ER 722 at 733.
21 SA Post Office v Delacy and Another 2009 (5) SA 255 (SCA) at para 35; Cooper and Another v Merchant
Trade Finance Ltd (474/97) [1999] ZASCA 97 (1 December 1999) para 7; Govan v Skidmore 1952 (1) SA 732
(N) at 734C-E.
22 Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159B-D.
vehicle, made any evasive manoeuvres or sounded any warning of his/her
approach by hooting. Moreover, from the fact that the vehicle dragged the
plaintiff for a distance of 2.5 metres, a more natural and plausible conclusion is
that it must have been driven at high speed.
[39] Upon the consideration of the evidence adduced before me, I have no
reason to reject the evidence of the plaintiff regarding the fact the bodily injury
he sustained were as the result of the sole negligence of the unidentified driver
in driving the unidentified vehicle. On the facts of the present case, I come to
the conclusion that the plaintiff has established on a balance of probabilities that
the Fund is liable for his claim. What remains is the question of costs.
Costs
[40] The general rule is that the successful litigant must be awarded its costs
unless there are exceptional circumstances which justify a deviation therefrom.
It is trite that in awarding costs, the court exercises its discretion in accordance
with what is fair between the parties. No grounds exist in the present case for
deviating from the general rule. Costs must accordingly follow the result.
[41] Mr Frost underscored the fact that on 05 March and 21 October 2025 the
matter was enrolled for trial and on both dates the trial never commenced. He
went on to submit that the matter was on the roll for trial on 03 August 2026 and
subsequently postponed at the instance of the Fund. As of that date, the Fund’s
defence had still been that of lack of knowledge of the allegations that the
plaintiff made in respect of the occurrence of the accident and the negligence of
the unidentified driver in causing it. Mr Frost submitted that for these reasons,
costs on scale B are warranted.
[42] One of the considerations relevant to the determination of the scale of
costs is the manner in which the case was presented. 23 Mr Dlamini submitted
that the onus rested on the plaintiff to prove its case against the Fund and there
was no onus on the Fund to prove anything. In the light of this fact, there is no
basis to criticise the Fund’s plea of lack of knowledge.
[43] While Mr Dlamini is correct in stating that the onus rests squarely on the
plaintiff to prove his case against the Fund, his submission overlooks the
unconventional manner in which the Fund sought to conduct litigation in this
case. There was in this trial an attempt to place at issue the plaintiff’s own
negligence in the occurrence of the collision. There does not appear to be any
cogent reason why on the occasions when this matter was postponed, the issue
of the plaintiff’s contributory negligence was not given attention by the Fund if
it was desirous of contesting it. The Fund inexplicably raised this issue during
the plaintiff’s testimony. This trial was needlessly drawn out as a result.
[44] I have sympathy for the legal representatives of the Fund who invariably
deal with the high volumes of litigation related personal injury claims against
the Fund. However, it remains their task to expeditiously conduct and/or
supervise litigation on behalf of their client. Importantly, trial by ambush
undermines the affected party’s right to a fair trial. In the circumstances of the
present case, costs on scale B are warranted.
Order
[45] In the result, I make the following order:
1. The Road Accident Fund (the Fund) is held liable for 100% for such
damages as plaintiff is able to prove resulting from the bodily injury
23 Mashavha v Enaex Africa (Pty) Ltd 2025 (1) SA 466 (GJ), para 14.
which he sustained pursuant to the collision that occurred at or near
Matanzima Road, KwaNobuhle, Kariega, Eastern Cape, on 24 May 2023.
2. The Fund shall pay the plaintiff’s taxed costs of suit on scale B referred to
in Uniform Rule 67A, and such costs shall include the costs of trial for
the 3rd and 11th of August 2026.
____________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Adv. A Frost
Instructed by : BLC Attorneys, Gqeberha
For the defendant : Mr N Dlamini
The Office of the State Attorney, Gqeberha
Date heard : 11 August 2026
Date delivered : 18 August 2026