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JUDGMENT
Phahlamohlaka J
[1] In this matter the plaintiff sued the Road Accident Fund (“the
defendant”) for damages suffered as a result of the injuries sustained in
a motor vehicle collision that occurred on or about 27 March 2020. The
matter was set down for trial on both merits and quantum of damages.
[2] The plaintiff brought an application to adduce evidence of the
experts by means of affidavits in terms of Rule 38(2) of the Uniform Rules
of Court. The defendant opposes the application on the basis that the
affidavits relied on are lacking in detail and that the defendant seeks
to cross examine the expert witnesses.
[3] Therefore, the court has to determine the Rule 38(2) application first
before dealing with the merits of the case.
[4] Rule 38(2) provides that:
“The witness at the trial of any action shall be examined viva voce, but a
court may at any time, for sufficient reason, order not all or any of the
evidence to be adduced at any trial be given on affidavit or that the
affidavit of any witness be read at the hearing, on such terms and conditions
as to it may seem meet: provided that where it appears to the court that any
other party reasonably requires the attendance of a witness for cross
examination, and such witness can be produced, the evidence of such
witness shall not be given on affidavit.”
[5] From the reading of the subsection it becomes abundantly clear
that the applicant in the Rule 38(2) application must satisfy the court
that sufficient reason exists for the evidence of any witness, including
expert witnesses, to be given on affidavit. Therefore, the privilege of
adducing evidence by means of affidavits is not there for the mere
taking. The applicant ought to make out a compelling case to justify
why the court should depart from the default position.
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[5] In Madibeng Local Municipality v Public Investment Corporation
Ltd1 the Supreme Court of Appeal stated as follows:
“The approach to rule 38 (2) may be summarized as follows: a trial court has a
discretion to depart from the position that, in a trial, oral evidence is the norm.
When that decision is exercised, two important factors will inevitably be the
saving of costs and the saving of time, especially the time of the court in this
era of congested court rolls and stretched judicial resources. More
importantly, the exercise of the discretion will be conditioned by whether it is
appropriate and suitable in the circumstances to allow the deviation from the
norm. That requires a consideration of the following factors: the nature of the
proceedings, the nature of the evidence, whether the application for
evidence to be adduced by way of affidavit is by agreement, and ultimately,
whether, in all the circumstances, it is fair to allow evidence on affidavit.”
[6] The plaintiff in this case relies on the confirmatory affidavits of the
expert witnesses and not the affidavits themselves. The confirmatory
affidavits of the experts which are similar, read in part as follows2:
“3. On or during the 14th of March 2024, I received instructions from Mashishi
Attorneys, as it then was, to assess Motsapi Thabiso Johannes for the injuries
she sustained during the motor vehicle accident which occurred on the 27th
of March 2020 were in the injured was involved.
4. After having conducted the above-mentioned assessment, I have drawn/
prepared a medical legal report which same was signed by me on the 13th
of May 2024. I can confirm the contents, opinions and conclusions of my
findings in the report constitute a true exposition of my expert opinion herein
and I am satisfied that the report concerned may be used on the date of
trial, same constituting the whole of the evidence to be presented by me, of
which the copy thereof is attached hereto and marked as annexure “PTK 1”.
which the copy thereof is attached hereto and marked as annexure “PTK 1”.
[7] It can be gleaned from the confirmatory affidavits of the expert
witnesses that they don’t deal with the evidence sought to be
adduced by those experts, but relate to the confirmation of the
attorney’s founding affidavit. This in my view flies in the face of Rule
38(2).
[8] Counsel for the defendant highlighted some contradictions in some
of the reports of the experts, which according to the defendant
warrant clarity in cross examination. The subrule provides that if it
1 2018 (6) SA 55 (SCA) at para 25
2 Caelines 012-2 Dr PT Kumbiray’s confirmatory affidavit
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Date judgment reserved: 18 May 2026