SAFLII Note: Certain personal/private det ails 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
GAUTENG DIVISION, PRETORIA
CASE NO: 136395/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 2/06/26
SIGNATURE:
In the matter between:
SHABALALA, SMANGELE WHITNEY PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Delivered: This judgment was prepared and authored by the Judge (Acting) whose
name is reflected and is handed down electronically by email and by uploading it to the
electronic file of this matter on caselines. The date for hand down is deemed to be 24
August 2026.
Summary:
Action for damages against the Road Accident Fund (RAF). The Plaintiff to discharge
onus to prove negligence against the insured driver on balance of probabilities.
Evaluation of Evidence: Material discrepancy in the Accident Report Form, Hospital
Records and the Plaintiff's affidavit deposed to in compliance with Section 19(f) of the
Road Accident Fund Act 56 of 1996, as amended "the Act".
Evidence tailored.
Plaintiff's evidence must be credible, consistent and reliable.
Held: (1) The application for default judgment is refused.
(2) There is no order as to costs.
(3) This judgment is to remain on caselines under Case Number 136395/2024
until this matter is finalised.
JUDGMENT
LEOPENG AJ
INTRODUCTION
[1] The Cambridge, Collins and Oxford Dictionaries define discrepancy as a
difference or inconsistency between two or more things that should be the same.
Furthermore, tailored evidence refers to testimony or facts that have been manipulated,
coached or fabricated to fit a desired narrative.
This is what this matter is all about.
[2] Even in the absence of the defendant in default judgment applications, the
plaintiff still bears onus of proof of negligence on balance of probabilities against the
insured driver, whether it be identified or unidentified.
[3] Where there is apparent discrepancy from the documents filed in the dispute
between the parties, in casu, Accident Report ("AR") Form, the plaintiff ’s affidavit
deposed to in compliance with Section 19(f) of the Act, and City Hospital records
(clinical notes), a Court may exercise a discretion to hear evidence in respect of such a
discrepancy. In such an instance, a court may, after hearing and evaluating evidence
tendered by and on behalf of the plaintiff, if satisfied, and the discrepancy is not
material, grant default judgment against the defendant, if not satisfied and the
discrepancy is material, refuse default judgment and make such an order as it deems fit.
FACTUAL MATRIX.
[4] The plaintiff instituted a claim for damages against the Road Accident Fund, "the
defendant", for injuries sustained in a motor vehicle collision which took place on 05
June 2022. The summons was properly served by the Sheriff on the defendant on 03
December 2024.
[5] On 29 September 2025, the State Attorney (RAF), Pretoria, electronically served
the notice of intention to defend.
[6] On 18 November 2025, the plaintiff served the notice of bar.
[7] The plaintiff timeously served the notice of set down for the hearing of the
application for default judgment to be heard on 01 April 2026.
PLAINTIFF'S CASE AS PLEADED.
[8] The plaintiff alleges in paragraph 4 of the particulars of claim that:
"on or about the 05 th June 2022 at approximately 24h00 at or near at M4 Road,
Victoria Embarkment, KwaZulu -Natal Province, a collision occurred between a
motor vehicle with unknown registration letters and numbers (hereinafter referred
to as insured vehicle) and a motor vehicle with registration letters and numbers
N[...] driven by the plaintiff”.
[9] The grounds for alleging the ( unidentified) insured driver's negligence are listed
in paragraph 5 of the particulars of claim.
[10] In support of the plaintiff's claim against the defendant on the aspect of merits,
inter alia, the following were served on the defendant:
(a) Clinical notes (records) of City Hospital,
(b) Accident Report (AR) Form completed by Mr H.H Zinyana, and
(c) Plaintiffs 19(f) affidavit.
MATERIAL DISCREPANCY
[11] Suffice to mention that there is an apparent material discrepancy in the clinical
notes (records) of City Hospital, Accident Report (AR) Form, and the plaintiffs section
19(f) affidavit. I list the discrepancy ad seriatim hereunder:
[11.1] Clinical Notes (Records) of City Hospital1
The following is stated:
How the injury occurred? Please give full details:
"Patient Jost control/ (sic) and she knocked a wall and a car was on fire she was
help{sic) by unknown people"
[11.2] Accident Report (AR) Form2
Under the Brief Description of the Accident the following is recorded:
"It is alleged that the driver of MV "A" was travelling North on the M4 North upon
taking the off -ramp to Victoria Embarkment she collided with the concrete wall
separating M4 and the off -ramp to Victoria Blockmen the vehicle caught fire,
1 Caselines 005(3)-17.
2 Caselines 005(13)-260.
other motorists assisted the driver to City Hospital, family called and arranged the
tow "
[11.3] Plaintiff's Section 19(F) Affidavit3.
Paragraph 3 of the plaintiff's section 19(f) affidavit, states:
"On or about the 05 th of June 2022 at approximately 24h00 at or near M4 North,
Victoria Blockmen, KwaZulu- Natal Province, I was involved in an accident.
An accident occurred wherein I was driving a motor vehicle with registration
letters and numbers N[...], where an insured motor vehicle with unknown letters
and numbers bumped me from behind and veered off the road, colliding with a
concrete divider''.
HEARING OF THE APPLICATION FOR DEFAULT JUDGMENT.
[12] On 01 April 2026, Mr Mosala appeared on behalf of the plaintiff seeking a default
judgment order against the defendant in respect of the aspects of the liability and
quantum. There was no appearance of behalf of the defendant. I brought to Mr Mosala's
attention the discrepancy mentioned in paragraph 11 supra. I mentioned that
considering this discrepancy, I will only deal with and make a finding on the aspect of
merits only, that is, the negligence of the alleged unidentified insured driver, under
Section 17(1)b of the Act.
[13] In exercising a discretion in terms of Rule 31(2)(a) of the Uniform Rules of Court,
I directed the plaintiff's legal representative(s) to contact Mr H.H Zinyana with Service
No 3793206, who completed and signed Accident Report (AR) Form referred to in the
preceding paragraphs, to present himself to Court.
[14] In addition, I unequivocally directed that the plaintiff's legal representative(s)
should not discuss with Mr Zinyana the contents of the Accident Report (AR) Form, in
particular the "Brief Description of the Accident" and the plaintiff's alleged version of how
3 Caselines 005(12)-258.
the motor vehicle collision under review took place as pleaded, and as appearing in the
plaintiff's section 19(f) affidavit. The matter stood down to the 09 April 2026.
[15] On 09 April 2026, after Mr Zinyana took a stand and was duly sworn in, I
enquired from him whether there was any discussion on the merits of matter, and in
particular the contents of the Accident Report (AR) Form between him and the plaintiff's
legal representative(s), any day from or after 01 April 2026, pursuant to my directive that
he must present himself to Court. His answer was in the affirmative, simply put, he said,
he was asked about the discrepancy in the Accident Report (AR) Form under "Brief
Description of the Accident", and the plaintiff's account of how the motor vehicle collision
under review took place. I assume this refers to what is contained in plaintiff's section
19(f) affidavit and paragraph 4 of the particulars of claim.
I find this conduct of the plaintiff's legal representative(s) improper. This is clearly
contrary to, and with complete disregard of the directive I issued in paragraphs 13 and
14 supra.
EVIDENCE TENDERED AND EVALUATION THEREOF
I now turn to deal with their evidence presented and evaluation thereof.
The evidence of Mr Zinyana.
[16] Mr Zinyana's salient testimony is summarised as follows:
• he attended the scene of the motor vehicle in question, and obtained the
information of what is stated under "Brief Description of the Accident", of Accident
Report (AR) Form from the homeless people at the scene of the accident in
question, and did not ask their names, addresses and contact numbers, as he
says, they were homeless people,
• he was told by the same homeless people at the scene of the accident
that the plaintiff was assisted out of her motor vehicle and taken to the hospital,
• he obtained the plaintiff's names, identity number and the details of her
motor vehicle that he filled in the Accident Report (AR) Form from her family
members,
• he knew the plaintiff personally as they were/are colleagues at eThekwini
Municipality (Traffic Department),
• he was also involved in a motor vehicle collision on 06 June 2022 on his
way to hospital to take the statement from the Plaintiff as to how the motor
vehicle accident she was involved in took place, and as a result he did not arrive
at the hospital, and therefore could not take a statement from the plaintiff,
• he did not obtain and record the plaintiff's version of how the motor vehicle
collision she was involved in took place in the Accident Report (AR) Form, and
• he received a call from the plaintiff after her discharge from hospital, she
wanted to give him her version of how the motor vehicle accident she was
involved in took place, but by then, according to him, she informed her that the
Accident Report (AR) Form was already completed and sent to the Department
of Transport.
[17] The plaintiff's salient testimony is summarised as follows:
• she was driving a motor vehicle with registration letters and numbers
N[...], and an insured motor vehicle with unknown letters and numbers bumped
her from behind and she veered off the road, colliding with a concrete divider,
and sustained bodily injuries,
• she was assisted by other people out of her motor vehicle and taken to
hospital,
• she was discharged from hospital after three (3) or so days, and called Mr
Zinyana, as they knew each other from work, with the intention of giving him her
version of how the motor vehicle collision she was involved in took place,
• Mr Zinyana informed her that the Accident Report (AR) Form was already
sent to the Department of Transport,
• she first saw and read contents of the Accident Report (AR) Form, in
particular what is stated in the Brief Description of the Accident, when her
attorneys requested and obtained it from "Traffic / Transport Department during
the lodgement process of her claim against the Defendant.
[18] I pause to mention that she did not give a satisfactory, candid and convincing
answer when I asked, regard to her as a Traffic Authorised Officer, why on reading what
is stated in the Brief Description of the Accident in the Accident Report (AR) Form, she
did not take it up with Mr Zinyana in an attempt to state how the collision actually took
place before her attorneys served it on the defendant in the prosecution of her claim.
CONCLUSION
[19] In evaluating the evidence of Mr Zinyana and the Plaintiff, I find it to be tailored in
many respects, neither credible nor coherent, this is compounded by the material
discrepancy mentioned in paragraph 11 supra.
[20] I find:
[20.1] what is stated in the City Hospital records (clinical notes) and the Brief
Description of the Accident in the Accident Report (AR) Form, probable, and
therefore conclude that Plaintiff was involved in a single motor vehicle accident,
[20.2] what is stated in the plaintiff's section 19(f) affidavit, and the oral evidence
of the Mr Zinyana and the Plaintiff, improbable,
[21] Consequently, I find that the plaintiff failed to prove negligence of the alleged
unidentified insured driver.
[22] Even if I am wrong in finding that the discrepancy mentioned in paragraph 11
supra is material, furthermore in the evaluation of the evidence tendered, and
consequently that the plaintiff failed to prove negligence of the alleged unidentified
insured driver, refusal to grant default judgment does not have the final effect in the
main dispute between the parties, rather a simple interlocutory order4.
ORDER.
[23] I make the following order:
1. The application for default judgment is refused.
2. There is no order as to costs.
3. This judgment should remain on caselines until this matter finalised.
P.M LEOPENG
4 First Rand Bank Limited TIA First National Bank v Mokaleng (2016) ZASC 169.
Candice v Road Accident Fund (2025) ZAGPJHC 310. Cowen & Others v Norton & Others (2025)
ZAGPJHC 142.
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA
Appearances:
For the Plaintiff: Adv C. Mosala
Instructed by: Sontsele Attorneys, Pretoria
Suite 423 217 Van Erkom Building
Crn Pretorius & Paul Kruger Streets
Pretoria.
Tel :082 937 5633
Email: sontsele@gmail.com
For the Defendant: No appearance.
Date of hearing: 01 April 2026 & 09 April 2026.
Date of Judgment: 21 August 2026.