Mamafha v TS Makhubela Incorporated and Another (8975/2021) [2025] ZAGPJHC 514 (29 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

GAUTENG
LOCAL DIVISION, JOHANNESBURG

Case
No: 8975/2021

(1) 
REPORTABLE: YES
/ NO

(2) 
OF INTEREST TO OTHER JUDGES: YES
/ NO

(3) 
REVISED: YES
/
NO

29 MAY 2025

In
the matter between:

THIATHU GOODWIN
MAMAFHA                                              

Plaintiff

and

TS MAKHUBELA
INCORPORATED                                          

First Defendant

THULANI SONNETH
MAKHUBELA                                          

Second Defendant

JUDGMENT

WINDELL J

Introduction

[1] 
This is an action instituted by the
plaintiff against the first and second defendants (the defendants).
He claims damages from the
defendants arising from their failure to
lodge a claim timeously with the Road Accident Fund (‘the
Fund’), which resulted
in the claim prescribing.

[2] 
In terms of Rule 33(4) of the Uniform Rules
of Court, the issues of merits and quantum were separated. The
defendant’s negligence
in allowing the plaintiff’s claim
to prescribe is not in dispute. The only issue for determination is
whether the motor vehicle
accident in which the plaintiff sustained
injuries was caused by the negligence of the unidentified insured
driver and, if so,
whether the plaintiff would have been successful
in a claim against the Fund for the amount now claimed. The
defendants dispute the plaintiff’s prospects of success in such
a claim and accordingly deny any liability to compensate
him.

[3] 
It is common cause that on 15 January 2015,
the plaintiff instructed the defendants to institute a claim against
the Fund arising
from a motor vehicle accident that occurred on 19
October 2013, in which the plaintiff sustained serious injuries. In
the summons and particulars of claim issued by the plaintiff’s
current attorneys, Katlego Ralikhuvhana Inc., on 23 February
2021,
the plaintiff alleged that the accident occurred at
the corner of Olifantsfontein Road and Potgieter Road,
Glen Austin, Gauteng Province, when he
collided with a pole in an attempt to avoid a truck approaching at
high speed with its bright lights on.
(Emphasis added.)

The Evidence

[4] 
Only the plaintiff testified, whereafter he
closed his case. The defendant elected not to call any witnesses and
similarly closed
its case.

[5] 
The plaintiff’s evidence can be
summarised as follows: On 19 October 2013, at approximately 18:30, he
was driving a white
Volkswagen Polo along Olifantsfontein Road in
Midrand, Gauteng. He turned right into Potgieter Road, heading
towards Glen Austin.
It was drizzling at the time, and the
streetlights were on. The road consisted of a single lane in each
direction.

[6] 
The plaintiff testified that he was driving
at a moderate speed of approximately 63 km/h when he entered a dip in
the road. As he
ascended from the dip, a truck approached from the
opposite direction. The truck was encroaching onto the plaintiff’s
lane
and its headlights were on bright. The plaintiff attempted to
signal his presence by flickering his own headlights.

[7] 
As the truck passed, the plaintiff heard an
impact at the rear of his vehicle. He testified that the trailer of
the truck had struck
the back right-hand side of his Polo, causing it
to spin and roll. The vehicle came to rest on the right-hand side of
the road.
The plaintiff lost consciousness and later awoke in
hospital.

[8] 
According to his evidence, he sustained
serious injuries as a result of the collision. Two days later, a
police officer visited
him in hospital and took a statement from him
regarding the incident.

[9] 
During the pre-trial conference, the
parties agreed that all discovered documents would be accepted as
being what they purported
to be, subject to either party’s
right to dispute the authenticity of any such document upon
reasonable notice. The plaintiff
subsequently and belatedly
discovered the police docket as part of the documents intended to be
used at trial. In response, the
defendant filed a notice indicating
that it did not admit the contents of the police docket referred to
in the plaintiff’s
notice in terms of Rule 36(10), dated 6 May
2025.

[10] 
During his testimony, the plaintiff made
reference to the statement he gave to the police. During
cross-examination, he was confronted
with this statement as well as
several other documents contained in the police docket. The plaintiff
raised no objection to the
use of the contents of the docket and
permitted the defendant’s counsel to question the plaintiff on
the contents of his
statement, the accident report, and the
accompanying sketch plan.

[11] 
According to the docket,  a police
officer, Constable Randima Nonhuwa, arrived at the scene of the
accident at approximately
21:45. In his affidavit, the officer
recorded that he had spoken to the plaintiff, who reportedly stated
that a truck with bright
lights and high speed had approached from
the opposite direction, causing him to lose control of his vehicle
and collide with a
pole.

[12] 
The plaintiff, however, denied giving any
such version to the police and disputed the accuracy of the sketch
plan, which indicated
that the accident occurred at the corner of
Olifantsfontein Road and Potgieter Road, and that his vehicle came to
rest after colliding
with a lamp pole on the left-hand side of the
road. He testified that he had no recollection of the events
following the collision
and only regained consciousness in hospital.

[13] 
The plaintiff maintained that the accident
took place in Potgieter Road, not Olifantsfontein Road, and denied
that he had collided
with a lamp pole. Reference was made to the
warning statement in which he stated that the truck had approached
with its bright
lights on and that he had attempted to “run
away from the truck,” after which he awoke in hospital. When
confronted
with this statement, he denied having made it.

[14] 
He was further confronted with the version
he advanced for the first time during his testimony, namely, that the
trailer of the
truck had struck the rear of his vehicle. His
explanation was that he had only recalled the events leading up to
the accident years
after the incident. He was then referred to the
version provided to his current attorneys in 2021, as set out in the
particulars
of claim, which differs from his testimony in court but
aligns with the accident report. He was unable to provide a
satisfactory
explanation for the discrepancies between these various
accounts.

[15] 
After the close of the plaintiff’s
case, he applied to amend his particulars of claim to align with his
oral testimony, specifically
to allege that the accident occurred in
Potgieter Road and that his vehicle had been struck by a truck. The
amendment was granted.

[16] 
Counsel for the plaintiff submitted that
the only version before the Court was that of the plaintiff, and that
his version was not
meaningfully contested by the defendant. It was
contended that the accident was caused solely by the negligence of
the unidentified
insured driver, and that the plaintiff sustained
bodily injuries as a direct consequence thereof.

[17] 
Counsel for the defendant submitted that
the plaintiff had failed to discharge the onus of proving that he
would have been successful
in a claim against the Fund.

Evaluation

[18] 
In view of the separation of issues granted
by this Court, the plaintiff was required to demonstrate, on a
balance of probabilities,
that he would have been successful in
proving liability against the Fund.

[19] 
The plaintiff’s shifting accounts of
how the accident occurred raise serious concerns about the
reliability of his evidence.
Although some allowance may be made for
his loss of consciousness and the severity of his injuries, his
denial of contemporaneous
statements recorded in official
documents—including the police affidavit, warning statement,
and accident report—undermines
his credibility. The version he
presented in court differs materially from those earlier accounts,
including the one pleaded, suggesting
either a reconstruction of
events over time or a lack of clear recollection. His inability to
explain these contradictions further
diminishes the probative value
of his testimony.

[20] 
While the amendment to the pleadings
aligned them with his testimony, it did not resolve the
inconsistencies in his earlier versions,
nor did it address the fact
that the amendment was sought only after the close of his case. The
timing of the amendment, combined
with the unresolved discrepancies
between his oral evidence, original pleadings, and documentary
records, weakens the overall credibility
of his claim.

[21] 
The original particulars of claim made no
mention of negligence on the part of the unidentified truck driver or
of his role in causing
the accident. This omission is significant, as
it suggests that the plaintiff’s current version emerged only
as the litigation
progressed. This further undermines the reliability
of his account and casts doubt on whether his present version was
ever the
true basis of his claim.

[22] 
The documents used during
cross-examination—including the warning statement, accident
report, and sketch plan—were discovered
by the plaintiff
himself. No objection was raised to their use by the defence. Even if
they were excluded, the plaintiff has failed
to explain why he
changed his version on the day of trial. It is notable that in 2021,
eight years after the accident, he gave
his attorneys a version that
was included in the particulars of claim, only to present a
materially different version in court.
This sudden and uncorroborated
change, without a plausible explanation, renders his testimony
unreliable.

[23] 
The plaintiff was not a credible witness,
and his version cannot be accepted. On the evidence presented, the
Court is not satisfied
that he has discharged the onus of proving, on
a balance of probabilities, that the accident was caused by the
negligence of the
unidentified insured driver.

[24] 
It follows that the plaintiff has failed to
establish that he would have succeeded in a claim against the Fund.
Accordingly, his
claim for damages against the defendants must fail.

Order

[25] 
In the result, the following order is made:

1. The plaintiff’s claim is
dismissed with costs.

2. The plaintiff is ordered to pay the
defendants’ costs.

L.
WINDELL

JUDGE
OF THE HIGH COURT

GAUTENG
LOCAL DIVISION, JOHANNESBURG

Delivered: 
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines.  The date for
hand-down is deemed to be 29 May 2025.

APPEARANCES

For
the applicant:                       Mr

N. Ralikhuvhana

Instructed
by:                             

Katlego Ralikhuvhana Mokgola Inc

 For
the respondent:                  
Ms L. Maite

Instructed
by:                             

Ngwane Mamod Incorporated

Date
of hearing:                         

12 May 2025

Date
of judgment:                      

29 May 2025