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JUDGMENT
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GUMEDE AJ
1. This is an action for damages instituted by Mr Khosa Goodman Obert (“the
plaintiff”), against the Road Accident Fund (“the Fund” or “the defendant”),
arising out of a motor vehicle collision in which the plaintiff was involved as the
driver of a motor vehicle.
2. The parties agreed to separate the issues of liability and quantum in terms of
Uniform Rule 33(4) and this judgment concerns only the issue of liability. The
central question for this court is whether the plaintiff has discharged the onus
of proving, on a balance of probabilities, that the collision was caused by the
negligence of the insured driver, Mr. Makwakwa Andy Nkululeko, or whether the
Plaintiff was the sole cause of the accident.
3. Only the plaintiff himself testified. The defendant did not call any witnesses.
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THE PLAINTIFF’S CASE
4. The plaintiff’s case is that on the day of the collision he had been assisting with
a ritual ceremony at his family home and was sent by his elders to purchase
items at a nearby shopping centre. He testified that he was familiar with the
road, having used it daily to travel to and from work, and that the weather was
clear and bright and sunny.
5. He says that he was driving along Khumbula Road when he observed a tractor,
driven by the insured driver at an intersection. The plaintiff contends that the
insured driver unlawfully entered the road without indicating and improperly
parked his vehicle in the middle of the road, partially obstructing the lane of
travel. The plaintiff testified that he attempted to avoid a collision by swerving
to the right but was prevented from doing so by oncoming traffic. He collided
with the tractor and sustained a head injury. He argues that the insured driver's
negligence was the sole cause of the accident.
6. In his police statement, the plaintiff recorded that he had been travelling at 80
km/h in a 60 km/h zone; in his oral evidence at trial, he said he had been
travelling at approximately 61 km/h. He could not explain why, at that speed, he
was unable to stop before colliding with a tractor which he says he could see
ahead of him.
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7. Furthermore, in his police statement the plaintiff said he struck the tractor “at
the back on the left side”; in his supplementary affidavit he said he “bumped the
insured motor vehicle on the left wheel”; in his oral evidence he first said he
struck the “rear end” of the tractor, and, on further questioning, he then said that
the point of contact was on the right.
8. There was also an issue regarding intoxication. It was put to him that the
hospital records generated upon his admission recorded that he was
intoxicated. The plaintiff disputed this, while maintaining that he had consumed
half a glass of beer earlier that day. The plaintiff was also ch allenged about
failing to report the collision until 15 October 2021, some eight months after the
fact. He could not recall precisely when he reported the matter but estimated
one or two months after the collision.
THE DEFENDANT’S CASE
9. The defendant's case is that the Plaintiff was negligent and was the sole cause
of the accident. The defendant’s relies on three main submissions (i) that the
plaintiff has provided inconsistent evidence regarding the date, time, and
manner of the accident, which destroys his credibility; (ii) that the Plaintiff was
intoxicated at the time of the accident; and (iii) that the Plaintiff, as the driver
who collided with the vehicle in front of him, is prima facie negligent and has
failed to provide a reasonable explanation to rebut this presumption. The
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defendant contends that the claim has been manufactured for the purpose of
financial compensation.
EVALUATION OF EVIDENCE
10. It is trite that the plaintiff bears the onus of proving, on a balance of probabilities,
that the insured driver was negligent and that such negligence caused the
collision.
11. The credibility of the plaintiff and the consistency of his evidence are central to
the determination of this matter. As alrea dy stated, t he plaintiff gave
contradictory versions of events.
12. The most significant contradiction concerns the date of the accident. The
plaintiff’s initial particulars of claim state the accident occurred on 7 February
2021. His Notice in terms of Rule 28 and supplementary affidavit, deposed to
in January 2026, seek to amend this date to 8 February 2021. Under cross-
examination, the plaintiff conceded that his evidence was inconsistent and that
there are two different dates in question. When asked which date the court
should accept, he testified that the court should accept the later date, 8
February 2021. There was an attempt to amend the particulars, but this was
not concluded as no amended pages were delivered.
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13. The particulars of claim also allege that the accident occurred at night and
seemingly blames the tractor for having no lights on. In his testimony, however,
he stated it was bright and sunny and occurred at 16:00 in the afternoon.
14. The plaintiff also initially testified that he collided with the insured driver's vehicle
on the left wheel but later stated he hit it on the rear end. He was unable to
provide a consistent description of the point of impact.
15. The plaintiff sought to explain these contradictions by citing his head injury and
a miscommunication with his legal representatives. He even distanced himself
from his own signed statement, claiming it was incomplete and that there was
a miscommunication. I am unable to accept such a n explanation, one may
accept miscommunication when it comes to the police statement but what about
communication with his own attorney who drafted the particulars of claim.
16. Furthermore, the plaintiff admitted to consuming alcohol on the day of the
accident. Although he claimed it was only half a glass and had no effect on him,
his hospital records which were prepared on the day in q uestion state that he
was intoxicated. The plaintiff’s denial in the face of this documentary evidence
further undermines his credibility.
17. In contrast, the defendant’s version finds more support in the objective
evidence. The Accident report indicates that the plaintiff himself alleged he was
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travelling at about 80km/h in a 60km/h zone. The plaintiff later denied this and
claimed he was travelling at 61km/h. I am of the view that the record made to
the police is more likely to be accurate than the later self -serving testimony of
the plaintiff, particularly given his established lack of credibility.
18. A driver who collides with the rear of a vehicle in front of him is prima facie
negligent. The onus is on the plaintiff to provide a credible explanation that
exculpates him. Given the inconsistent and unreliable evidence, the plaintiff has
failed to discharge this onus. I find it highly improbable that a reasonable driver
travelling at 61km per hour as now alleged by the plaintiff would be unable to
stop his vehicle in time to avoid a collision, unless he was not keeping a proper
lookout, was travelling at an excessive speed, or was otherwise not in proper
control of his vehicle which may have been exacerbated by him being
intoxicated as recorded in the hospital records.
CONCLUSION
19. I am not persuaded that the collision was caused by the negligence of the
insured driver. I find the evidence of the plaintiff to be unreliable, contradictory,
and improbable. The objective evidence supports the inference that the plaintiff
was driving at an excessive speed, failed to keep a proper lookout, and was
potentially intoxicated. He has failed to provide a credible explanation for
colliding with the tractor in front of him.
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APPEARANCES
Counsel for the Plaintiff: Adv M Sithebe, instructed by: Mahlalela Attorneys,
Mbombela
Counsel for the Defendant: Adv J Ragau, instructed by: State Attorney, Nelspruit
Date of Hearing: 19 February 2026
Date of Judgment: 4 September 2026