Mda v Road Accident Fund (CC3145/2022) [2025] ZAECMHC 42 (28 May 2025)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION: MTHATHA)
CASE NO: CC 3145 /
2022
In the matter between
LUYANDA
MDA
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
NGOQO AJ
[1]
This is an action for damages arising out of a motor vehicle accident
that occurred on the 19th February 2021 on the N2 road
near Jojweni Location between Mthatha and Qumbu, Eastern Cape. A
white Isuzu bakkie with registration
number H[…] driven by the
plaintiff collided with a grey Toyota bakkie with registration number
N[…], driven by an insured
driver who passed on immediately after
the collision.
[2]
At the beginning of the trial the parties agreed to separate the
issues relating to merits from the issues
relating to quantum in
terms of Rule 33(4).[1] That
then left the court with only one issue for determination; ‘whether
the insured driver was the sole cause of the accident
or whether
there was any contributory negligence from the plaintiff.’
[3] It
is trite law that for the plaintiff to succeed with his claim against
the defendant he must establish 1%
negligence against the insured
driver. Once the plaintiff proves the occurrence giving rise to an
inference of negligence on the
insured driver, the latter must
produce evidence to the contrary or take a risk that judgment is
given against him.
[4]
The plaintiff testified that he instituted a claim against the Road
Accident Fund (RAF). He testified
that during the morning of the 19th
February 2021 at around 05:00 to 06:00, he was driving on N2 from
Tsolo to Mthatha, taking a child to school. He was with Nceba
who was
sitting in the front seat and a child who was sitting in the back
seat. He was driving a white Isuzu bakkie with registration
number
H[…].
[5]
It was misty and the road surface was wet. As he passed the first
turn near Jojweni, going down approaching
the second turn, a silver
grey VVTI Toyota bakkie appeared approaching him from the front.
However, due to the fact that it was
misty, he was not able to see it
while at a distance. This vehicle was encroaching on his lane,
straddling the middle lane and
the plaintiff’s lane.
[6]
The plaintiff testified further that on his left, there were rails.
He therefore could not swerve to
his left to avoid the collision
between his vehicle and that of the insured driver. As the vehicle of
the insured driver was already
too close and partly on his lane when
he spotted it, the only option he had was to brake. However, the
vehicles still collided
with each other.
[7]
The vehicle of the plaintiff was hit on the front, on the driver’s
side. After the collision the
plaintiff’s vehicle turned,
crossed the road in the middle of the road, which is the fast lane on
the side of the on-coming
traffic. The Toyota bakkie which had
collided with his vehicle went around his vehicle and ended up on top
of the rails which were
on the plaintiff’s left before the
collision.
[8]
During cross-examination by Mr. Thaver, the plaintiff stuck by his
version and did not contradict
himself. He testified during
cross-examination that the incident happened fast and on his side of
the road. He testified that his
vehicle did not stop immediately
after he stepped on the brakes and ended up colliding with the
insured driver’s vehicle
on his side of the road. Subsequently,
his vehicle’s fender and door on the right-hand side were
damaged.
[9]
No further evidence was adduced by the plaintiff. At this stage the
representative of the defendant
applied for an absolution from the
instance. Mr. Thaver cited the absence of documentary proof and
absence of objective evidence
as reasons for this application. This
application was opposed by the legal representative of the plaintiff,
Mr. Badli. He submitted
that there was enough evidence to
substantiate the claim of the plaintiff on record. It suffices to say
that the application was
dismissed by this court as having no merit.
[10]
The defendant applied to open its case and to adduce the evidence of
Mkhuseli Mcdonald Khuthu. Mr. Thaver in support
of his application
submitted that the plaintiff had provided the defendant with
documents, during the discovery process, which
the plaintiff was now
not using, placing the defendant at a disadvantage. Mr. Badli raised
an objection to that stating that he
did not know the nature of the
evidence to be called and whether calling the person will comply with
rule 36 (9) and (10) of the
uniform rules.[2]
[11] Rule 36
(10) (a) provides that:
‘No
person shall, save with the leave of the court or the consent of all
the parties, be entitled to tender any plan, diagram, model,
or
photograph unless such person shall not more than 60 days after the
close of the pleadings have delivered a notice stating an
intention
to do so, offering inspection of such plan, diagram, model or
photograph and requiring the party receiving notice to
admit the same
within 10 days after receipt of the notice.’
[12]
Having considered the provisions of this rule and having considered
the argument by Mr. Thaver, this court
decided that there is merit in
Mr. Thaver’s argument. This court also decided that in the
interest of justice it would be
unfair to deprive the defendant of
the opportunity to adduce evidence in support of its case. This court
decided to allow the defendant
to call its witness as the plaintiff
would not suffer any prejudice which cannot be addressed at a later
stage.
[13]
Mr. Khuthu testifying for the defendant told the court that he is an
employee of RAF. At the time of his
testimony he had been working for
RAF for three years as a claims-investigator. Prior to joining RAF,
he was employed by the Department
of Transport for ten years as an
investigator.
[14] He
testified that he was given an instruction to investigate the merits
of the plaintiff’s claim. He
could not remember who gave him
the instruction. He testified that he was given documents in a form
of a file which also contained
a police docket with statements of
police who attended the accident scene, plaintiff’s statement,
an accident report, hospital
records and correspondence from the
handler.
[15]
Mr. Khuthu further testified that he verified the authenticity of the
police docket and the police station
from which it came. The docket
was confirmed to be correct. He subsequently read the statement of
the plaintiff which was a very
short warning statement. The purpose
was to establish whether an investigating officer had questioned the
plaintiff and to find
out where and when the statement was taken. He
was able to establish that the plaintiff’s statement was taken
a couple of
months after the accident.
[16] Mr.
Khuthu further testified that he subsequently consulted with the
plaintiff whom he asked to clarify his statement.
According to Mr.
Khuthu he was told by the plaintiff that his vehicle was on its lane.
The other driver straddled the lanes and
moved to the plaintiff’s
lane. The plaintiff further told him that he could not control his
vehicle as he was close to the
barrier line. He further testified
that the plaintiff told him that he bumped the deceased insured
driver’s vehicle on the
fender and driver’s door. Mr.
Khuthu further referred to the police sketch plan which he later
conceded was inaccurate.
[17] In his
argument before judgment, Mr. Badli submitted that what the court had
to ask itself is whether, on a balance
of probabilities the plaintiff
has succeeded in proving that the defendant is liable for all the
damages that he has suffered as
a result of the collision between his
vehicle and that of the deceased insured driver. He further submitted
that there was no evidence
on record to suggest contributory
negligence on the part of the plaintiff. He asked the court to find
in favor of the plaintiff.
[18]
Arguing for the dismissal of the plaintiff’s claim or
apportionment of damages, Mr. Thaver submitted
that the plaintiff’s
claim was fraught with inconsistencies. He submitted that the
plaintiff was unable to recall the lanes
upon which each party was
driving. He submitted that the plaintiff contradicted himself as to
where the collision would have happened
and gave different versions
throughout his testimony. Mr. Thaver also relied on the sketch plan
of the incident which, he submitted,
proved that the plaintiff was an
unreliable witness. He asked the court to consider an apportionment
of damages in accordance with
the Apportionment of Damages Act.[3]
In this regard, Mr. Thaver submitted that the plaintiff had testified
that he had seen the insured driver who had encroached on
his lane.
He tried to brake but could not stop his vehicle nor the collision
from occurring. There was no indication whether the
plaintiff had
flashed his lights or hooted at the insured driver to get his
attention.
[19]
The plaintiff gave his evidence in a clear and chronological manner.
As far as this Court is concerned, he
gave his evidence in a such a
way that it was easy for everyone to understand what had happened
immediately before and after the
collision. He was consistent about
the fact that the collision occurred on his side of the road. At no
point did he seem to be
clutching at straws about what happened that
day.
[20]
The same cannot be said about the evidence of the defence witness.
Firstly, he could not tell the Court who
instructed him to
investigate how the accident occurred. Secondly, he was not at the
scene of the accident when it occurred or
immediately thereafter.
Thirdly, he relied on a sketch-plan compiled by the police which he
conceded was inaccurate. Fourthly,
his whole evidence is based on
hearsay, save for what he alleges he was told by the plaintiff.
Lastly, the defence witness, more
than anything, seems to have
misunderstood the plaintiff with regard to the damages that were
caused to the plaintiff’s vehicle.
[21] During
cross-examination the plaintiff testified that his vehicle was
damaged in the front. Its fender and door
on the driver’s side
were damaged. This issue was not in any way challenged by Mr. Thaver
during cross-examination of the
plaintiff. It is, therefore,
unfathomable that the plaintiff would have told Mr. Khuthu anything
in the contrary. The less I say
about Mr. Khuthu‘s evidence,
the better it is for everyone, particularly the defendant’s
case.
[22] The
argument by Mr. Thaver that the plaintiff’s evidence is fraught
with inconsistencies has no factual basis.
This Court holds a
different view as it can be seen herein above. The argument that the
plaintiff ought to have hooted, flickered
his lights and stopped in
time is also not plausible. It has to be remembered that the weather
was bad on the day and misty. In
his uncontested evidence, the
plaintiff did testify that he could only see the oncoming vehicle
when it was already too close to
him, leaving him less or no room to
react timeously and to take precautionary measures to avoid the
collision. It would be an absurdity
for this court to expect of any
driver to handle his vehicle perfectly while driving under imperfect
conditions. What is expected,
however, is that the driver handles his
vehicle with caution, mindful that any negligence or recklessness on
his part might affect
other road users or even result in death.
[23]
Section 16 of the Civil Proceedings Act[4]
provides that judgment may be given in any civil proceedings on the
evidence of any single competent and credible witness. The
Court in
the case of Bravemen
Madlala
v RAF[5]
dealing with the issue of a credible evidence said it is evidence
that is likely to be believed. The court further went on to say
that
a credible witness is a witness who is believed to be truthful.
However, it is still up to this Court to assess the evidence
of the
plaintiff in order to weigh the probabilities.
[24]
In the case of Neuyebauer
& Co LTD v Bodiker & Co (SA)[6]
Solomon JA dealing with the duty of a defendant in a civil matter
said the following in his dictum;
‘The
duty of the defendant then is to set forth his defence with
sufficient precision to enable the plaintiff to ascertain what the
defence is.’
[25] There
can be no doubt in anybody’s mind at this stage that before
this court, the only credible and reliable
version of events that
unfolded on the 19th February 2021 is that told by the
plaintiff and this court accepts it. Subsequently, the court finds
the following to be proven
facts:
a)
That on the 19 February 2021, while taking
a child to school at about 05:00-06:00, the plaintiff’s vehicle
collided with an
insured driver’s vehicle on the plaintiff’s
side of the road.
b)
Owing to misty weather, the plaintiff could
not see the insured driver’s vehicle approaching in time.
c)
The insured driver’s vehicle was
straddling the lanes and encroaching on the plaintiff’s lane.
d)
At the time when the plaintiff saw the
insured driver’s vehicle it was already too late and the only
thing that he could do
was to brake.
e)
Owing to weather conditions, his vehicle
did not stop immediately and ended up colliding with the insured
driver’s vehicle
on the plaintiff’s side of the road.
[26] I
am satisfied, therefore, that the plaintiff has discharged the onus
that rested on him. I am satisfied
that the insured driver was the
sole cause of the accident.
[27]
In terms of section 17 (1) (a) and (b) of the Road Accident Fund
Act[7] (the Act) and regulations
promulgated thereunder, the defendant is liable to compensate victims
of motor vehicle accidents arising
from the driving of a motor
vehicle where the identity of the owner or the driver has been
established and or subject to any regulation
made under section 26 of
the Act where the identity of neither the owner nor the driver
thereof can be established.
[28]
Consequently, I make the following orders:
a)
The defendant is held liable for all
damages suffered by the plaintiff as a result of a motor vehicle
accident that occurred on
the 19th
February 2021 on N2 road near Jojweni Location between Mthatha and
Qumbu, Eastern Cape.
b)
The defendant to pay costs of trial on
Scale B.
NGOQO AJ
JUDGE OF THE HIGH
COURT
Heard on: 19 MAY 2025
Judgment handed down on:
28 MAY 2025
Plaintiff’s
Counsel: Z BADLI
MADALA
CHAMBERS
MTHATHA
Defendant’s
Counsel: MR THAVER
Instructed
by:
STATE ATTORNEY
94
SISSON STREET
FORT
GALE
MTHATHA
[1]
Uniform
Rules of Court (Updated to 20 September 2024)
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