Kalipha v Road Accident Fund (867/2023) [2025] ZAECMHC 31 (29 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE
DIVISION, MTHATHA)

 
CASE
NO: 867/2023

In the matter between: 

NOMANA
KALIPHA                                                                       

Plaintiff

and

ROAD
ACCIDENT
FUND                                                               
Defendant

JUDGMENT

RUSI J

[1]       
Section 17 of the Road Act Fund Act 56 of 1996 makes provision for
the Road Accident
Fund’s liability for loss or damage suffered
by a person as a result of bodily injuries caused by or arising from
the driving
of a motor vehicle by any person if the injury is due to
the negligent or wrongful act of the driver.

[2]       
On 22 February 2023, the plaintiff issued summons against the Road
Accident Fund (RAF
or the Fund) claiming R3 300 000.00 in damages
under several heads, in respect of a ‘Webber III’ (ankle)
injury allegedly
sustained by her as a result of being knocked down
by an unknown vehicle on 26 January 2022 while walking on the road at
or near
Coffee Bay Junior Secondary School in Coffee Bay.

[3]       
RAF denied liability for the plaintiff’s damages and alleged in
its plea that
her injury did not result from the alleged accident. In
the alternative, RAF pleaded that the alleged accident was as a
result
of the plaintiff’s sole negligence, in that she walked
in the path of the unknown driver, further alternatively, that her

negligence contributed to the occurrence of the alleged accident.

[4]       
However, on 18 June 2024, RAF’s defence was struck out[1]
on application by the plaintiff following its failure to comply with
the plaintiff’s request for discovery as envisaged in
Rule 35
of the Uniform Rules of Court. Resulting from the striking out of
RAF’s defence, the plaintiff made an application
for judgment
to be entered against the defendant.

[5]       
The matter served before me on 04 December 2024 for hearing as an
application for
a default judgment. On the date of hearing, Mr Baceni
who represented the plaintiff, requested the court to determine only
the issue of the Fund’s liability and separate the quantum
of
damages for determination at a later stage. This application was
granted as envisaged in Uniform Rule 33(4).

[6]       
Notwithstanding the striking out of RAF’s defence, the
plaintiff still had to
establish her entitlement to the default
judgment. She gave oral evidence in support of her application, and
she was the only witness.
She also relied on documents that were
filed with RAF at the time she lodged her claim. The bundle of these
documents contained
medical records from Zitulele Hospital where the
plaintiff was admitted following the alleged motor vehicle accident;
and those
from Bedford Hospital where she was transferred for further
treatment. It also contained the contents of the police docket which

included the accident report form and sketch plan with the key
thereto which Sergeant Ngambu of the Coffee Bay South African Police

Service compiled. Below I set out a summary of the plaintiff’s
oral evidence.

The plaintiff’s
evidence

[7]       
The plaintiff testified that on 26 January 2022 around 22h00 she was
coming from her
part-time employment at White Clay in Coffee Bay.
While walking along the road near a bridge and as she was about to
approach a
curve, she heard a bang and at that same time she fell
down in the middle of the road. The road was not busy; it is a
two-way tar
road and the only markings on it were arrows indicating
the direction of the vehicles. There was no source of light where she
was
walking, hence it was dark. As a result of the accident, she
sustained an injury to her right ankle and felt pain.

[8]       
She was woken up from where she fell down by Luyanda Tshemese
(Luyanda) who picked
her up, carried her on his back and took her to
a nearby homestead of one Nomava Ndevu where she spent the night. An
ambulance
was phoned but no one answered the phone call. On 27
January 2022 a lady named Nombuyekezo Yatha conveyed her to Zithulele
Hospital
in her private vehicle. She was admitted at Zithulele
Hospital and the X-ray examination that was performed revealed that
she had
a fracture on her right ankle. She was later transferred to
Bedford Orthopeadic Hospital for further treatment.

[9]       
According to the sworn statement of Sergeant Ngambu, the plaintiff
reported the accident
at the Coffee Bay police station on 19 March
2022.  Sergeant Ngambu attended the alleged accident scene. The
accident report
that she subsequently compiled is dated 19 March
2022. Annexed to the accident report is a sketch plan and key thereto
in which
the point of impact is depicted as being near the edge of
the lane on the left side of the of the road with arrows drawn on
that
lane to indicate the path of the moving vehicles. The plaintiff
had difficulty confirming from the sketch plan the side of the road

on which she was knocked down by the unknown vehicle.

[10]     
At the end of the plaintiff’s evidence-in-chief I asked her
questions in order to elucidate
certain aspects of her evidence.
Those related to the relevant time of impact, her path on the road
and the path of the vehicles
that moved thereat, inter alia. Below I
set out what emerged from the plaintiff’s evidence during my
questioning.

[11]     
She was not facing the oncoming traffic when she was walking on the
road, and therefore, the
vehicle that knocked her down came from
behind. She did not see the vehicle, nor did she see any beam of its
headlamps or heard
a hooter before she heard a bang. She surmised
that she was knocked down by a vehicle. Before she heard a bang she
was constantly
looking around because she was walking alone at night.
The point of impact as depicted on the sketch plan is indeed on the
path
of the vehicles that were approaching from behind. The reason
why she walked in the path of the vehicles was that she was in a
hurry, and she was alone on the road.

[12]     
The plaintiff further testified that it was from Luyanda that she
heard that she was knocked
down by a vehicle as a matter of fact.
Luyanda was not with her when she fell down after hearing a bang. She
estimated that he
must have emerged from a pathway not far from the
road. Her understanding of the rules of the road is that a pedestrian
must walk
on the correct side of the road. She was in her sober
senses when she walked on the road and believed that the path she
walked
in was the correct side of the road.

[13]     
The medical records from Zithulele Hospital indicate that the
plaintiff was admitted thereat
on 27 January 2022 with the history of
‘a car driving over her leg.’ They also show that the
diagnoses of the doctors
who treated the plaintiff in both hospitals,
was that she sustained a right ankle injury which required surgical
intervention.

[14]     
The police officer who drew the accident report and deposed to a
sworn statement on her visitation
of the alleged accident scene; and
Luyanda were not called to testify.

Submissions on behalf
of the plaintiff

[15]     
Mr Baceni submitted that the plaintiff succeeded in
establishing, on a balance of probabilities, that a motor vehicle
accident occurred as
a result of which she sustained an injury to her
right ankle. It was Mr Baceni’s submission further that
in the light of the fact there was no other object on the road which
may have collided with the
plaintiff, it follows that the plaintiff’s
injury resulted from being hit by an unknown vehicle.

[16]     
While he readily conceded that what is recorded in the hospital
records as the history of the
plaintiff’s injury was a far cry
from the description that she gave of how the accident to place, Mr
Baceni submitted that this contradiction was not material as
to result in the rejection of the plaintiff’s version. He
further submitted
that the plaintiff’s evidence established
that the driver of the unknown vehicle that knocked her down was
solely negligent.
In making this submission, Mr Baceni took
the view that if the plaintiff did not see any vehicle lights, an
inference must be drawn that the insured driver was wholly
negligent.

[17]     
It was further submitted on behalf of the plaintiff, as alternative
argument, that in the event
that the court finds that the accident
was not due to the sole negligence of the unknown driver, but that
the plaintiff contributed
to its occurrence by her negligence, the
appropriate degree of apportionment of liability may accordingly be
applied.

The law

[18]     
In order to succeed in her claim, the plaintiff had to establish on a
balance of probabilities
that her injury arose out of the negligent
driving of a motor vehicle and that there is some connection between
the driving and
her injury.[2]
In the present case, the plaintiff will only succeed if she satisfies
the Court on a preponderance of probabilities that her version
is
true and accurate and therefore acceptable. It is trite that the
estimate of the credibility of a witness will be inextricably
bound
up with a consideration of the probabilities of the case.[3]

[19]     
Explaining what the standard of proof on a balance of probabilities
entails, learned author Schwikkard
states as follows:[4]
  

‘In
civil cases the burden of proof is discharged as a matter of
probability. The standard is often expressed as requiring proof
on a
“balance of probabilities” but that should not be
understood as requiring that the probabilities should do no
more than
favour one party in preference to the other. What is required is that
the probabilities in the case be such that, on
a preponderance, it is
probable that the particular state of affairs existed.’ 

[20]     
And, in Stacey
v Kent,[5]
Kroon
J
wrote:

‘The
inquiry after the case remains whether the plaintiff has, on a
balance of probabilities, discharged the onus of establishing
that
the collision was caused by negligence attributable to the defendant.
. .’

[21]     
In the discussion that follows I apply these principles of the law to
the facts of the plaintiff’s
application for default judgment.

Analysis

[22]     
Despite the fact that RAF’s defence was struck out, this Court
must be satisfied, on the
facts presented by the plaintiff through
her evidence, that on a preponderance of probabilities, (a) she
suffered bodily injury;
(b) arising out of the negligent driving of a
motor vehicle.

[23]     
That the plaintiff sustained an ankle injury on 26 January 2022 is
common cause. What must be
determined is whether her injury was
caused by the negligent driving of a motor vehicle.

[24]     
The starting point is that the plaintiff was a single witness.
Section 16 of the Civil Proceedings
Evidence Act 25 of 1965 provides
that judgment may be given in any civil proceedings on the evidence
of any single competent and
credible witness. In other words, only
credible evidence shall be sufficient to enable a Court to give a
judgment.

[25]     
There is of course no rule of thumb or formula to apply in
determining the credibility of a single
witness.  The trial
court will weigh the evidence of the single witness and consider its
merits and demerits, and having done
so, decide whether it is
trustworthy and whether it is satisfied that the truth has been told
despite the shortcomings or defects
or contradictions in the
witness’s evidence.[6]

[26]     
The essence of the plaintiff’s testimony is that in as much as
she was of sober senses
when the alleged accident occured in the
sense that she had not consumed any intoxicating liquor, she did not
see what happened
at the crucial moment regarding her claim –
i.e., how the accident took place. She could only estimate that the
bang she
heard, her falling down, and the injury she sustained were
as a result of the unknown vehicle colliding with her.

[27]     
It bears emphasizing that the plaintiff’s evidence must be
based on facts and nothing else,
and certainly not conjecture. There
is no direct evidence of the accident and how the alleged accident
happened. The picture portrayed
by the plaintiff is that the driver
of the vehicle that knocked her down did not stop after the alleged
accident. At best for her,
her version that she was knocked down by a
car is derived from what she heard from Luyanda Tshemese. She would
have conveyed this,
in turn, to those attending to her at Zithulele
Hospital.

[28]     
I am asked to make a finding, from the aforegoing evidence, that the
accident took place; and
to draw an inference of negligence on the
part of the unknown driver, or to make such finding of contributory
negligence as may
appropriately be made against the plaintiff.

[29]     
As is trite, there must be positive proven facts from which such
inferences can be made. If there
are none, the method of inference
fails and what is left is mere speculation or conjecture.[7]

[30]     
On the plaintiff’s version, it follows that Luyanda is the one
who must be taken as having
possessed knowledge of facts regarding
how the accident happened. His evidence was, therefore, crucial.
However, no basis was laid
for the admission of the evidence of which
is Luyanda is the source and the person on whom its probative value
depends. Such evidence
remains inadmissible hearsay. What therefore
remains is circumstantial evidence from which it must be inferred
that the plaintiff’s
injury arose from the alleged driving of
the motor vehicle; and if so, whether the unknown driver was solely
negligent.

[31]     
The cardinal rule of inferential reasoning is that the inference that
is sought to be drawn must
be consistent with all the proved facts;
if it is not, then the inference cannot be drawn.[8]
The inference sought  to be drawn must, furthermore,  be
the ‘more natural, or plausible, conclusion from amongst

several conceivable ones’ when measured against the
probabilities.[9] As held in
Ocean
Accident and Guarantee Corporation Ltd v Koch
 ‘plausible’ in this context means ‘acceptable,
credible, suitable’.[10]

[32]     
In order for this Court to infer that a motor vehicle accident
occurred out of which the injury
of the plaintiff arose, and that the
accident was caused by the sole negligence of the driver, it must be
satisfied that the facts
that have been set forth by the plaintiff
reflect the probability of what took place on 26 January 2022 at the
time and place that
she alleges she was knocked down by a vehicle.
Put differently, an inference of the actual occurrence of the
accident and the negligence
of the unknown driver would presuppose
that this Court believes the plaintiff’s evidence, or that
there are facts which this
Court finds to be proven which support the
inferences to be drawn.

[33]     
Even though the hospital records indicate that the plaintiff
presented with a history of being
in a motor vehicle accident, that
history is described therein as that of ‘a vehicle driving over
her leg’. No evidence
was adduced to elucidate how the unknown
vehicle drove over the plaintiff’s leg. The plaintiff’s
oral evidence was
simply that ‘she heard a bang and
simultaneously fell down.’ Before that, she did not see the
vehicle, she heard no
hooter and saw no beam of headlamps. It is
unsurprising she was not able to tell the court how the alleged
unknown vehicle was
driven at the time of the accident. All of this
is despite the fact that she had constantly been looking around as
she walked along
the road.

[34]     
The plaintiff’s testimony is, to say the least, superficial, as
though tailored. This is
compounded by the fact that the person who,
on her version, came about with information that she was hit by a car
was not called
to give evidence. Mr Baceni argued that from
the fact that the plaintiff did not see any beam of headlights, the
court must infer that the unknown driver was
negligent. I disagree
with this proposition as it is based on pure conjecture, unsupported
by objective facts.

[35]     
On the plaintiff’s own showing she did not see the vehicle that
presumably hit her, nor
did she make any other observation that
indicated that a vehicle was approaching behind her to begin with.
All that she heard was
a bang which was followed by her falling down.
Miraculously, after she had fallen down Luyanda emerged, woke her up,
and gave her
vital information to the effect that she was knocked
down by a vehicle. For someone who kept looking around as she was
walking
alone in the night, she had difficulty explaining to the
court where and at what stage Luyanda emerged.

[36]     
The question that follows is whether it is probable that a person who
was in her sober senses
while she walked on a quiet road; and who
constantly kept looking around (presumably for possible hazards or
threat to her being),
would not see or hear the approaching vehicle
(if she was indeed walking on that road). Apart from the fact that
the plaintiff
inexplicably walked in the path of moving or
approaching vehicles, it is improbable that in those circumstances
she would not have
seen the vehicle that knocked her down or heard it
approaching. Contrary to Mr Baceni’s submission that the
shortcomings in the plaintiff’s evidence are immaterial, they
relate to the crucial aspects of
her claim and are therefore
material.

[37]     
The granting of a default judgment involves an exercise of the
discretion by the court upon a
consideration of the evidence adduced
in support of thereof. The vague manner in which the plaintiff
described the incident and
the inconsistencies between her
description of the accident and what is contained in the hospital
records; coupled to her failure
to call the person who must be
assumed to have had knowledge of the accident, left this Court in the
dark regarding how she sustained
her ankle injury. On the evidence
before me, I am unable to find that the plaintiff’s injury
arose from the driving of a
motor vehicle.

[38]     
For all the aforegoing reasons, I make the following order:

1. The application for
default judgment is refused.

L.
RUSI

JUDGE
OF THE HIGH COURT

Appearances

For the
plaintiff         
:          
Adv.
Z Baceni

Instructed by            
:          
M.
Ndlela Attorneys

56 Sprigg Street, Mthatha

Date heard               
:          
04 December
2024

Date
delivered         
:          
29 May
2025