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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Not Reportable
CASENO: 23424/20
In the matter between:
MSAYA MNDLULI PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Neutral Citation: Mdluli v Road Accident Fund (23424/20)[2026]
ZAGPPHC (04 September 2026)
Coram: LESUFI AJ
Heard: 18 June 2026
Delivered: 04 September 2026
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Summary: Delict – Claim for damages – Motor vehicle collision – Whether
the Plaintiff established liability on the merits – contributory negligence –
Apportionment of Damages Act 34 of 1956 – onus of proof – Road Accident
Fund Act 56 of 1996 – s 17 – Uniform Rules of Court – Rule 33(4) – separation
of merits and quantum – Uniform Rule 31(2) – default judgment
ORDER
1. The Defendant is ordered to pay 50% of the Plaintiff ’s proven damages
2. The Defendant shall pay the Plaintiff ’s taxed party and party costs on the
High court scale including Counsel’s fees in the discretion of the Taxing
Master.
3. Quantum is postponed sine die
JUDGMENT
LESUFI AJ
Introduction
[1] This is an action for damages arising from a motor vehicle collision that
occurred on 15 July 2017. The Plaintiff, Mr Msaya Mdluli, instituted an
action against the Defendant, the Road Accident Fund (“RAF”), seeking
compensation in terms of section 17 of the Road Accident Fund Act 56 of
1996 for injuries sustained as a result of the negligent driving of the
insured driver. As a consequence of the collision, the Plaintiff sustained
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injuries and consequently claims damages in respect of past and future loss
of earnings and past medical expenses.
[2] The merits were separated from Quantum in terms of Rule 33(4) of the
Uniform Rules of Court.
[3] The matter came before this Court as an application for default judgment
following the RAF's failure to comply with the Rules of Court by not
filling its plea within the prescribed period the RAF failed to take the
necessary steps to advance the matter and was not represented when the
application for default judgment was heard.
Background Facts
[4] The Plaintiff instituted the action against RAF by way of summons,
which were duly issued and served on the RAF on 30 July 2020. The
summons, in accordance with the applicable provisions of the Uniform
Rules of Court, expressly notified the RAF of the prescribed periods
within which it was required to take the necessary procedural steps,
including the filing of its plea, and of the consequences of failing to
comply with such time periods.
[5] On 15 December 2020, the RAF served a notice of intention to defend.
Notwithstanding its notice of intention to defend, the RAF failed to
deliver its plea within the prescribed period. Consequently, upon the
expiry of the applicable period for delivery of the plea, the RAF became
ipso facto barred from delivering its plea.
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[6] Due to the lapse of time and RAF’s failure to file its plea, the Plaintiff
proceeded to apply for a default judgment in terms of Uniform rule 31(2)
on the 18 June 2026 which the Notice of Set Down was served on RAF
on the 31 March 2026 per hand the matter was enrolled for hearing and it
was heard 3rd June 2026. The matter was heard on the 18 June 2026.
[ 7] The Plaintiff in its notice of motion applied to proceed in terms of Rule
38(2), which application was not granted.
Merits
[8] The court now turns to consider the merits of the Plaintiff ’s claim.
[9] The Plaintiff testified under oath and his evidence can be summarized as
follows: The Plaintiff was a driver of a taxi (motor vehicle) with
registration letters and numbers D[...] 0[...] H[...] G[...] on the 15 July
2017. He was driving on a two -way lane along the corner of Ysterhout
and Matumi Street which is a T -Junction, it required him to stop, and he
had stopped at a stop sign. He was obstructed by a truck on his right-hand
side which indicated it would turn to his left side.
[10] According to Plaintiff the truck had the right of way. The truck indicated
its intention to turn to his left -hand side. The truck suddenly turned to his
right-hand side instead of his left -hand side, at that stage he was already
entering the road and suddenly realized the truck was not turning. He then
swerved to the side of the nearby railway line to avoid colliding with that
truck. He does not remember what he collided with and he woke up in
hospital with severe injuries.
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Issues for Determination
[11] The court now turns to the issues for determination, namely:
11. 1 Whether the Plaintiff established liability on the merits;
11. 2 Whether the insured driver is solely responsible for the accident
that occurred on the 15 July 2017; and
11. 3 Whether there is any contributory negligence.
The Law
[12] In order to award 100% damages to the Plaintiff, the Plaintiff bears the
onus to prove on a balance of probabilities that the accident occurred and
that the insured driver is solely responsible for the accident. In Ninteretse
v RAF1 the court stated as follows:
“[T]he plaintiff bears the onus on a balance of probability that the insured driver was
negligent and that 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
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 the weight of the evidence.”2
[13] The principle of the mere absence of evidence from the defendant was
reinforced on appeal when Ninteretse v Road Accident Fund (A170/2018)
[2022] ZAGPPHC 187 (24 March 2022) was subsequently heard on
1 [2018] ZAGPPHC 439.
2 Id at para 28.
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appeal and the court found that the Plaintiff was negligent and the appeal
was dismissed with costs.
[14] The fact that the accident happened was proven by an Accident Report,
alongside other documents. The Accident Report serves to prove that the
accident occurred on the 15th of July 2017. The court notes that
according to the evidence of the Plaintiff, he was not present when the
accident report was completed. There is no description in the report as to
how the accident occurred except that the driver was injured and could
not speak.
[15] In general, there is a duty on all road users to keep proper look out on the
road to avoid colliding with other road users. This is also applicable to
drivers. In the case of De Kock v Road Accident Fund 3, the court
emphasized that’ a driver should look attentively and his duty is
continuous.
[16] Moreover, in the case of Nogude v Union and South – West Africa
Insurance Co Ltd4 Jansen JA said the following’’
“A proper lookout entails a continuous scanning of the road ahead, from side to side,
for obstructions or potential obstructions (sometimes called a 'general look -out': cf.
Rondalia Assurance Cor- poration of S.A. Ltd. v. Page and Others, 1975 (1) S.A.
3 ZAWCHC 86 at para 32.
4 1975(3) SA 685 A.
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708 (A.), 718H -719B). It means —"more than looking straight ahead —it includes an
awareness of what is happening in one's immediate vicinity”5
[17] The Plaintiff must therefore place before the court credible and sufficient
evidence establishing the manner in which the collision occurred and
demonstrating that the insured driver's negligence was the sole or
predominant cause thereof. Furthermore, the authorities stated above
recognise that a driver has a continuous duty to maintain a proper lookout
and to take reasonable steps to avoid foreseeable collisions.
[18] Accordingly, where the evidence establishes that the Plaintiff was
stationary at a stop sign and that the insured driver failed to maintain a
proper lookout and collided with the Plaintiff, such evidence may support
a finding of negligence, provided that it satisfies the required balance of
probabilities.
Analysis
[19] Counsel for the Plaintiff argued in his heads of argument for 100%
liability in favour of the Plaintiff and that the court should find that the
insured driver is sole cause of the accident. He further argued that the
issue of contributory negligence, the onus to aver and prove rests with the
defendant.
[20] As alluded earlier, the court listened to the evidence of the Plaintiff under
oath. In his own version, the truck had a right way. However, the Plaintiff
entered the road before satisfying himself that the truck being driven by
5 Id at P73.
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the insured driver had completely turned and turned to the correct side
because it indicated to turn. Clearly the Plaintiff assumed that the truck or
the insured driver would turn to the side he had indicated and intended to
turn to. It is apparent from the Plaintiff ’s conduct that he did not keep a
proper look out and did not exercise reasonable care as he should have.
Had the Plaintiff not entered the road prematurely before satisfying
himself that the insured driver had completely turned, the accident could
not have happened.
[21] As far as contributory negligence is concerned, the court in AA Mutual
Insurance Association Ltd v Nomeka 6considered whether the
Apportionment of Damages Act applied where contributory negligence
had not been formally raised in the pleadings. As alluded to above,
Counsel for the Plaintiff argued that the 100% liability should be in
favour of the Plaintiff and that the court should find that the insured
driver is sole cause of the accident to the exclusion of contributory
negligence. Therefore, arguing that the court is barred from applying the
Act, although the above evidence suggests that the Plaintiff was also at
fault.
[22] The court further held that:’’
“ The weight of the decisions is, therefore, that provided the Plaintiff ’s fault is put in
the issue, an apportionment need not be specifically pleaded or claimed.’’7
6 1976 (3) SA (A).
7 Id at P40.
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[23] According to the courts in Van der Merwe v Fourie 1959 (3) SA 568 (E ),
Tonyela v South African Railways and Habours 1960(2) SA 68 (C) ,
Logiotis v Van Eyck 1968(3) SA 429 (E), the court retained its discretion.
[24] In the latest decision of Moemise v Road Accident Fund, 8 the court held
that the court can still find such negligence on the Plaintiff ‘s own version
if his evidence clearly supports such a finding.
[26] In my view the Plaintiff failed to exercise caution as a driver. He had to
wait at the stop sign and satisfy himself that the truck had completely
turned as he had put before the court in his own version that the truck had
a right of way. It is clear from the evidence presented that he contributed
to the accident. Had he exercised the necessary caution and not entered
the road, the accident would have not have occurred.
[26] I therefore find that the Plaintiff was 50% negligent while the insured
driver was also 50% negligent.
Order
[27] In the result, the following order is granted:
1. The Defendant is ordered to pay 50% of the Plaintiff ’s proven
damages
8 [2025] ZAGPPHC 686 at para 24 and 25.
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2. The Defendant shall pay the Plaintiff ’s taxed party and party costs on
the High court scale including Counsel’s fees in the discretion of the
Taxing Master.
3. Quantum is postponed sine die
___________________________
B LESUFI
ACTING JUDGE OF THE HIGH COURT
PRETORIA
APPEARANCES
For the Plaintiff: Adv ML van Ryneveld
Instructed by: Dreyer and Dreyer Attorneys Inc
angelique@dreyerlaw.co.za
For the Defendant: No Appearance