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[2026] ZAMPMBHC 101
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Howard v Road Accident Fund (828/2023) [2026] ZAMPMBHC 101 (1 September 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
Case
No.:
828/2023
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED
NO
DATE 01/09/2026
SIGNATURE
In the matter between:
NTIMANE
DUMISANE HOWARD
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
VUKEYA
ADJP
[1]
The plaintiff lodged a claim for
damages pursuant to injuries he sustained because of a
motor vehicle
collision he alleges happened on 3 January 2021. The plaintiff was a
cyclist on Malekutu road, Kabokweni when the
accident happened. He
averred that while cycling, an unknown motor vehicle with unknown
registration numbers and letters driven
by an unknown driver made a
sudden turn into his lane and collided with him. He lodged a claim
with the Road Accident Fund on 3
August 2021, in the amount of
R3 400 000. 00 made up of several heads of quantum.
[2]
The Road Accident Fund (“the
defendant or RAF”), represented by the Office
of the State
Attorney, defended the action but presented no version of its own
before the court.
[3]
At the hearing of the trial, the
parties agreed to approach the court with an application
to separate
the issue of merits from quantum in terms of Rule 33 of the Uniform
Rules of Court which was granted by the court.
The matter then
proceeded only on merits and the issue of quantum was postponed
sine
die
pending the determination of merits.
[4]
The plaintiff’s
evidence supported by his witness, Given Moriri, was, in a
nutshell,
that he was riding a bicycle on 3 January 2021 along Malekutu Road
heading towards Kabokweni. The visibility was good,
the weather was
dry and the road surface was good. He stated that as he was cycling
on the side of the road, he passed a taxi which
was stationary on the
road. A bakkie was approaching from the opposite direction of the
road, moving at a high-speed. The bakkie
collided with him as the
driver made a sudden turn into the lane he was cycling in, when he
swerved to the far left of his lane,
the driver of the bakkie also
went to the same direction and collided with him on the far edge of
the road. He testified that there
was nothing he could have done to
avoid the collision.
[5]
According to the
plaintiff, the driver of the bakkie failed to stop after the
accident.
Mr Moriri, who was walking on the side of the road as the
accident happened, took him to the hospital, where he received
medical
attention for the injuries sustained in the accident. He was
admitted and discharged the following day with a head injury and a
knee injury. Thereafter, he went to the police station to report the
incident. At the police station, the police officer informed
him that
he could not complete the collision report because there were no
documents before him confirming that he had been involved
in an
accident.
[6]
Mr Given Moriri, confirmed that,
as he was walking on the pavement, on 3 January 2021,
he saw the
plaintiff cycling. He immediately noticed a bakkie travelling on the
opposite side of the road. The bakkie approached
at a high speed and
collided with the plaintiff, as it turned into his lane. He testified
that the bakkie collided with the plaintiff
and then drove off after
the accident. He then took the plaintiff to the hospital.
[7]
Both the plaintiff and Moriri
were confronted with a contradiction in their evidence regarding
the
date of the incident. It was indicated in the plaintiff’s
particulars of claim and section 19 (f) affidavit that the
accident
happened on 4 January 2021, however, in the plaintiff’s
supplementary papers and in their viva voce evidence in
court, the
accident happened on 3 January 2021. The plaintiff and Moriri
explained that this was an error as the accident happened
on 3
January 2021 after which the plaintiff was admitted to Themba
Hospital in line with the hospital records. The plaintiff also
explained that the fact that he spent the whole night between 3 and 4
January 2021 at the hospital contributed to the confusion.
[8]
The real issues to be determined
in this matter are very crisp, and they are, whether an
accident
involving a motor vehicle which collided with the plaintiff occurred
at all and if it did, whether it was caused solely
by the insured
driver's negligence or by the combined negligence of the insured
driver and the plaintiff and whether there is a
legal
nexus
between the Plaintiff's injuries and the operation of a motor
vehicle.
[9]
The onus is on the plaintiff to
prove on a balance of probabilities that his injuries were
caused by
or arose from the negligent driving of an unidentified motor vehicle.
Although the defendant vehemently disputed the
evidence of the
plaintiff, it did not adduce any evidence to substantiate its
allegation that the plaintiff was not involved in
the accident. It
only placed its reliance on the suggestion that the reliability,
credibility, and admissibility of the plaintiff's
testimony and his
witness's late-amended evidence was questionable.
[10]
It has been argued on behalf of the plaintiff that
the plaintiff and the witness remained consistent in
their testimony
during cross-examination regarding how the motor vehicle accident
occurred. They both testified that the accident
occurred on 3 January
2021, and that the insured driver was operating a bakkie and left the
scene of the accident thereafter. Furthermore,
it was submitted that
it is uncontroverted that the insured driver's motor vehicle left its
lane and veered toward the plaintiff's
lane of travel.
[11]
Counsel for the plaintiff submitted that the
question to answer in determining whether the plaintiff’s
conduct fell short of that of a reasonable person the test for
negligence ought to be applied. The court was referred to the case
of
Kruger v Coetzee
1966 (2) SA 428
(A) at 430 where the
test for negligence was set out as follows:
"For the purposes of
liability, culpa arises if -(a) a
diligens paterfamilias
in
the position of the defendant - (i) would foresee the reasonable
possibility of his conduct injuring another in his person or
property
and causing him patrimonial loss; and (ii) would take reasonable
steps to guard such occurrence; and (b) the defendant
failed to take
such steps."
[12]
According to the plaintiff, although the defendant
pleaded in the alternative for contributory negligence
there was no
shred of evidence supporting the stance that the plaintiff was also
to blame for the accident. The plaintiff submitted
that Section
1(1)(a) of the Apportionment of Damages Act gives the court
discretion to reduce the plaintiff's claim for damages
suffered on a
just and equitable basis and to apportion the degree of liability.
The plaintiff argued that where apportionment
is to be determined,
the courts consider the evidence as a whole, in assessing the degrees
of negligence of the parties, and there
was no evidence to gainsay
the plaintiff’s version of the incident.
[13]
The plaintiff submitted that it should be
successful in the action, however, in the event that the Court
determines that a just and equitable apportionment is to be made on
the basis of the proven facts, the plaintiff submitted that
such
apportionment should be 80% in his favour, with the result that the
defendant be held liable for 80% of the plaintiff's proven
damages.
[14]
The defendant argued for the dismissal of the
plaintiff’s claim basing its argument on the fact that
the
plaintiff failed to present to the court an Official Accident Report
(OAR) or police statement from the date of the incident.
It referred
the court to the case of
Selamolela v Road Accident Fund
(2010), where the court held that where a version is uncorroborated
by police records, the court must exercise extreme caution.
The mere
fact that a Plaintiff is injured does not, by itself, prove the
involvement of a motor vehicle.
[15]
According to the defendant the absence of an
Official Accident Report (OAR) means there is no neutral, statutory
record of the scene, the time, or the conditions of the alleged
accident. Furthermore, the defendant submitted that a mention in
a
hospital file is insufficient to "bridge the gap" between
the injury and a motor vehicle and without an accident report,
it is
equally probable that the plaintiff's head and knee injuries resulted
from a fall, an assault, or a non-motor vehicle collision.
It argues
that even if the court accepts the hospital records as proof of an
"accident," they provide no evidence of
negligence.
[16]
The defendant further contended that the
plaintiff's own conduct was the causa
causans
(proximate
cause) of the collision. It relies on the case
of Shield Insurance
Co Ltd v Theron NO
1973 (3) SA 515
(A)
, in which the court held
that where there are no witnesses and the court is left to draw
inferences, the plaintiff's failure to
explain his own manoeuvres
count against him. The defendant submitted that in the event that the
court finds that the accident
happened, that 90% negligence be
apportionment against the plaintiff in terms of the Apportionment of
Damages Act 34 of 1956.
[17]
The first question to answer is whether
an
accident involving a motor vehicle and the plaintiff occurred at all.
This depends on the evidence of the plaintiff and Moriri
whose
version is that the bakkie that collided with him disappeared from
the scene. Moriri, the eyewitness to the accident, did
not take the
registration plates and numbers of this motor vehicle but could only
describe it as a bakkie. The defendant has submitted
that the failure
of both the plaintiff and Moriri to place before court more
information regarding the identity of the insured
driver is
indicative of the fact the accident did not occur.
[18]
It must be borne in mind that the eyewitness was
just a passer-by and may not have been aware that an accident
was
about to happen. To blame him and the plaintiff, who was injured, for
not capturing the bakkie’s registration numbers
and plates
would be far-fetched. One may also take into consideration that
Moriri immediately gave attention to the injured cyclist
and tried to
find transport to take him to hospital. Furthermore, the evidence of
the plaintiff was that when he went to the police
station to report
the accident on the next day, after being discharged from the
hospital, the police refused to assist him, and
this is the reason
why there is no accident report regarding the accident.
[19]
This all comes down to the question whether the
plaintiff did sufficiently enough to get the identity of
the insured
driver of the bakkie.
In
Ninteretse v
RAF
(29586/13)
[2018] ZAGPPHC 493 (2 February 2018)
,
Raulinga J expressed himself as follows and I agree with his views
“…
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.
There is no onus on the defendant to prove anything.
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.”
[20]
Although there is evidence that there was a stationary taxi in the
vicinity, there is no evidence whether
the taxi had any passengers in
it who may have witnessed the incident. There is also no evidence
that there were bystanders who
may have witnessed the accident. It
may be said that the plaintiff did everything in his power to find Mr
Moriri although he did
not know him but failed to go back to the
scene to try and find anyone who may have had information regarding
the accident. This
does not suggest that the accident did not happen.
The evidence before court is that after he was discharged from the
hospital,
the plaintiff went to the police station to attempt to
report the accident, but he was sent away and the police refused to
help
him. Although he did not go back to the scene to make inquiries,
my view is that he could not have done anything else without police
assistance.
[21]
There may not be an accident report relating to
the accident, however, there is credible corroborative evidence
of
Moriri who fully supported the evidence of the plaintiff regarding
how the accident happened and that he indeed accompanied
him to the
hospital. The court also places reliance on the hospital records in
which it was recorded that the plaintiff “was
riding a bicycle
and was involved in an accident”. This is the history that was
provided to the hospital when the plaintiff
was admitted. To a
certain extent this information is also relevant in corroboration of
the plaintiff’s evidence that he
was involved in a car
accident. I therefor find that the plaintiff has been able to show
that
an accident involving a motor vehicle
occurred in which an unknown bakkie, driven by an unknown driver
collided with him while he
was cycling.
[22]
This brings me to the next issue for
determination, which is whether the accident was caused solely by the
insured driver's negligence or by the combined negligence of the
insured driver and the plaintiff
.
The law regarding the duty of a driver is trite, a driver
should scan the road ahead continuously for obstructions or potential
obstructions. In
Nogude
v Mniswa
1975(3)
SA 685 (A) at 688D a "proper look-out" was described as
follows:
"More than looking
straight ahead it includes awareness of what is happening in one’s
immediate vicinity. He (the driver)
should have a view of the whole
road from side to side."
[23]
It is every road user’s duty to keep a proper
look-out when using the road. The duty is not only that of
a driver
of a motor vehicle. The plaintiff testified that as he was riding the
bicycle, a taxi was stationary in front of him,
and it was parked
wrongly. He swerved to pass the taxi and then went back to his lane,
that is when a bakkie came onto his lane
and came straight towards
him and collided with him. He said the bakkie collided with him on
the far edge of the road where he
had swerved to.
[24]
The plaintiff also had a duty to ensure that it
was safe to pass the taxi while descending towards the bridge.
He
mentions four things that are of concern to this court and are
indicative of the fact that the plaintiff was not as innocent
as he
would like the court to believe. These are, 1) that there was a
stationary taxi which had parked wrongly, which he passed;
2) as he
passed this taxi, he was descending towards the bridge; 3) the were
cars coming from the opposite lane and 4) he swerved
to pass the taxi
and then went back to his lane. These four aspects point at a
dangerous manoeuvre because, he would have had to
increase speed to
pass quickly, while there was oncoming traffic in the right lane.
[25]
The insured driver drove on the wrong side of the
road, facing oncoming traffic. There is no evidence that
it was
necessary for him to do so. And had he kept a proper lookout, he
would have noticed the stationary taxi and the plaintiff
who cycled
on the same road. He did not act like a reasonable man as envisaged
in
Kruger v Coetzee
(supra). However, the insured driver, in
my view, was not the sole cause of the accident; the plaintiff also
made his fair contribution
towards the negligence. He overtook a
wrongly parked taxi and while also avoiding the cars which were on
the oncoming lane, he
swerved to overtake the taxi, hence his
evidence that he “swerved to pass the taxi, then went back to
my lane”.
[26]
This must have been done at a high speed as there
were oncoming cars on the opposite lane. The plaintiff
should have
stopped until all the cars in the opposite lane had passed before
overtaking the taxi. However, he was busy focused
on the dangerous
manoeuvre that he could not do anything else to try and avoid
colliding with the bakkie and therefore failed to
keep a proper
lookout.
The plaintiff’s
failure to observe the insured vehicle under the circumstances
described above was negligent, and in my opinion,
that negligence
causally contributed to the collision.
[27]
The question of the plaintiff’s failure to
remember the date on which the accident occurred does not
tarnish the
evidence in relation to the insured driver having negligently caused
the collision. He provided the court with
an explanation that
he spent the whole night at the hospital between the 3
rd
and the 4
th
of January 2021 that he got mixed up with the
dates. This explanation is acceptable to the court and therefore
found to be immaterial.
There is no evidence from the defendant or
insured driver controverting with the plaintiff’s testimony and
his version appears
to be credible despite having mixed up the dates
of the incident.
[28]
It is my
view that both
parties were responsible for the collision because either could have
avoided it. The insured driver could have avoided
the collision by
simply not driving into the lane facing oncoming traffic on a busy
road and the plaintiff should have kept a proper
lookout instead of
trying to pass a wrongly parked vehicle while there was oncoming
traffic on the right lane thereby losing focus
and failing to avoid
the accident.
[29]
The plaintiff was taken from the scene to the
hospital immediately after the accident and the hospital recorded
the
injuries as alleged. It is therefore my finding that there is a
connection between the accident and the injuries, sustained
by the
plaintiff.
[30]
I
am persuaded that the evidence of the plaintiff is sufficient to
conclude that he has discharged the onus to prove that the defendant
is liable to a certain extent in terms of the Road Accident Fund Act.
[31]
Section
1 of the Apportionment of Damages Act 34 of 1956, reads as follows
–
“
Apportionment
of liability in case of contributory negligence
1.
(a)
Where any person suffers damage which is caused partly by
his own
fault and partly by the fault of any other person, a claim in respect
of that damage shall not be defeated by reason of
the fault of the
claimant but the damages recoverable in respect thereof shall be
reduced by the court to such extent as the court
may deem just
and equitable having regard to the degree in which the claimant was
at fault in relation to the damage.
(b)
Damage shall for the purpose of paragraph (a) be regarded as having
been caused by a person’s fault notwithstanding the
fact that
another person had an opportunity of avoiding the consequences
thereof and negligently failed to do so.
[32]
In terms of the above legislation,
contributory
negligence on the part of the plaintiff can reduce his loss or damage
claimed against the defendant. It
gives
the court discretion to reduce the plaintiff's claim for damages
suffered on a just and equitable basis and to apportion the
degree of
liability. When making a determination on apportionment, the court
must consider the evidence as a whole in assessing
the degrees of
negligence of each party. Given the above considerations, the
plaintiff's conduct fell 30% short of what would have
been expected
of a reasonable person in his position. Accordingly, I am of the view
that the defendant is liable to pay 70% of
the plaintiff's proven
damages.
[34]
The Plaintiff, having been successful on the
merits, is entitled to costs on the High Court party-and-party
scale,
Scale B.
[35]
In the result, the following order is made:
1.
The defendant shall pay the plaintiff 70% of his proven damages.
2.
The trial in respect of quantum is postponed
sine die.
3.
The defendant is ordered to pay the costs of the merits trial on
party and party scale
(B).
VUKEYA
LD
ACTING
DEPUTY JUDGE PRESIDENT
APPEARANCES:
FOR THE PLAINTIFF: ADV M
PIENAAR
ATTORNEYS FOR THE
PLAINTIFF:
MAHLALELA
ATTORNEYS
MBOMBELA
Email:
[email protected]
Cell:
065 590 7088 / 063 741 4136
FOR
THE DEFENDANT: ADV LD MALEKA
ATTORNEYS
FOR THE DEFENDANT
:
STATE
ATTORNEY
MBOMBELA
(Attorney
Responsible: Tebogo Malope)
Tel:
013 101 3722
Cell:
066 303 4111
Email:
[email protected]