Mabena v Road Accident Fund (6954/21; A31/2024) [2025] ZAGPPHC 1385 (18 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1385 | Noteup | LawCite sino index ## Mabena v Road Accident Fund (6954/21; A31/2024) [2025] ZAGPPHC 1385 (18 December 2025) Mabena v Road Accident Fund (6954/21; A31/2024) [2025] ZAGPPHC 1385 (18 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1385.html sino date 18 December 2025 SAFLII Note: Certain personal/private details 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:  6954/21 APPEAL CASE NO:  A31/2024 (1)      REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED: NO DATE  : 18 DECEMBER 2025 SIGNATURE: In the matter between: JOHANNES MABENA Appellant and ROAD ACCIDENT FUND Respondent Coram :  Tolmay J, Kooverjie J, Pienaar (AJ) Heard on      : 12 November 2025 Delivered on :  18 December 2025 This judgment is handed down by way of electronic mail to the parties via the e-mail address indicated in the respective practice notes. The date of the judgment is deemed to be 18 December 2025. ORDER The following order is  made: [1]  The appeal is upheld [2]  The order of the court a quo is replaced with the following order: 2.1  The defendant is ordered to pay the plaintiff 100% of its proven damages 2.2  The quantum of damages is postponed sine dies 2.3  The defendant is ordered to pay the costs of the plaintiff [3]  The respondent to pay the costs of the appeal JUDGMENT Pienaar AJ (Tolmay J and Kooverjie J concurring) Introduction [1]   The appeal is against the judgment and order granted by Moshoana J dated 20 June 2023, where the appellant’s claim against the respondent was dismissed with costs. Leave to Appeal to this court was granted by the Supreme Court of Appeal on 15 November 2023. [2]   The respondent did not oppose the appeal and indicated that it will abide by the decision of the court. [3]    After the plaintiff instituted the claim for damages, the RAF filed a notice to defend the action and subsequently filed a first and second special plea. A pre-trial was held on 27 July 2022. In the pre-trial minutes, the Defendant assessed the matter and made a tender regarding the merits and quantum. [4]  The plaintiff filed a discovery affidavit and expert reports in support of his claim, but the defendant failed to file any discovery affidavit or expert reports. [5]  The trial was set down for hearing on the 03 May 2023. This matter proceeded on merits only. The quantum was postponed sine die. Grounds of Appeal [6]  In the Notice to Appeal, the Appellant relied on the following grounds: 6.1  From the testimony of the plaintiff and witnesses, it is clear that the accident happened, in their lane of traffic, head on and that the Plaintiff could not have avoided the accident in any way, is uncontested. 6.2  It is trite that the plaintiff bears the onus to prove negligence on the part of the defendant. 6.3  In fact, it is submitted that the testimony of the plaintiff and witness stands uncontested. Judgment of the Court a quo [7]  The court a quo dismissed the plaintiff’s claim against the defendant with costs. In the court a quo the plaintiff and witness testified . The appellant’s undisputed evidence (as plaintiff a quo) can be summarised as follows: 7.1  On 11 May 2019, he was driving his motor vehicle on Molefe Street, when all of a sudden, a motor vehicle appeared from the right-hand side of the road and collided with his vehicle. At the time of the collision he was traveling about 40 km/h. He tried to avoid the accident by swerving his vehicle away from the insured vehicle, but it was too late and he collided with this vehicle. 7.2  The appellant called a witness Mr Modibe Maluleke who testified that he was a passenger in the appellant’s vehicle. A motor vehicle emerged from the right-hand side of the road and collided with their vehicle. His testimony was that the insured vehicle came from the right-hand side trying to join the road they were traveling on. The appellant swerved to the left trying to avoid the collision, but it was too late. He was seated behind the driver and was able to see what was happening. The appellant was traveling at a speed of between 40 km/h to 50 km/h. The appellant did not have any other options available, to avoid the collision. [8]   The respondent elected not to call any witnesses and accordingly closed its case. The respondent conceded an apportionment of at least 50% before the trial and submitted during the trial that at least this apportionment should be considered by the court. [9]  The court a quo found that the matter should be dismissed for the following reasons: 9.1  The plaintiff presented two versions to court of how the accident occurred on 11 May 2019. 9.2  The first version is contained in his particulars of claim paragraph 4 where he said that the insured vehicle with registration numbers T[...] suddenly came from the opposite direction and swerved into his lane of travel. He swerved to the left to avoid the head on collision and the vehicle collided in his lane of travel. 9.3  The second version is the evidence that both the applicant and witness testified too. This is that the insured driver entered their path of travel from the right hand side of the road and collided with the plaintiff’s vehicle. [10]  The court a quo found that entering the road from the right and traveling in the opposite direction is contradictory. [11]  The court a quo found that it was unable to determine whether the collision took place and if it did, how it happened. For that reason, the court a quo found that the appellant failed to prove his case on preponderance of probabilities. Evaluation of the evidence [12]  It is trite that the onus rests with the appellant to prove negligence on the part of the defendant. [1] In Rondalia Assurance Corporation of SA Ltd v Mtkombeni 1979 (3) SA 967 (AD) at 972 A-D , the Appellate Division (as it was known then) per Galgut AJA said: “ However, each case in which it is said that a motorist is negligent must be decided on its own facts. Negligence can only be attributed by examining the facts of each case. Moreover, one does not draw inferences of negligence on a piecemeal approach. One must consider the totality of the facts and then decide whether the driver has exercised the standard of conduct which the law requires. The standard of care so required is that which a reasonable man would exercise in the circumstances and that degree of care will vary according to the circumstances. In all cases the question is whether the driver should reasonably in all the circumstances have foreseen the possibility of a collision ” [13]  What is of importance is that the facts before the court should be evaluated in toto before the court can come to a conclusion. [14]  The cour t a quo found that the applicant presented two conflicting versions of how the accident occurred. The first version is contained in his particulars of claim and the second version is the evidence led. Both the applicant and witness testified that the insured driver entered their path of travel from the right-hand side of the road. [15]  The court a quo erred as the evidence before it, indicated that the collision took place and that it was clear how the accident occurred. Both witnesses testified that the insured driver entered into their path of travel. [16]  The court a quo also erred in finding that the particulars of claim contradicted the evidence. In paragraph 4 of the particulars of claim, it is confirmed that the insured driver, approaching from the opposite direction, swerved into the plaintiff’s lane of travel, resulting in a head-on collision. Both witnesses testified that the insured driver came from the opposite side of the road into their lane of travel. The plaintiff’s evidence corroborates this. It is in any event important to be reminded that the particulars of claim does not constitute evidence. The defendant did not lead any evidence to contradict the evidence of the appellant and his witness. Therefore the appellant’s version was the only one before the court. The court a quo did not make any finding about credibility that could have justified the rejection of the appellant’s version. The respondent conceded an appropriated apportionment of at least 50% before the trial and submitted during the trial that at least this apportionment should be considered by the court. [17]  The court a quo incorrectly found that the plaintiff failed to prove his case on preponderance of probabilities. [18]  The evidence of the appellant and the witnesses, as well as the documentary evidence presented (OAR collision report and docket) to the court a quo , are facts that were proven in the court a quo. [19]  The only inference that could be drawn on the facts before the court a quo should have been that the insured driver was 100% negligent and caused the collision. It follows that the respondent should be 100% liable for the damages incurred by the appellant as a result of the collision. Costs [20]  The general principle is that the successful party is entitled to its costs. I find no reason to deviate from this principle. [21]   The respondent should be ordered to pay the costs of the trial and the appeal Order In the premise, the following order is made: 1. The appeal is upheld. 2. The order of the court a quo is replaced with the following order: 2.1  The defendant is 100% liable for the plaintiff’s proven damages. 2.2  The issue of quantum is postponed sine die. 2.3  The defendant is ordered to pay the costs of the plaintiff. 3.  The costs of this appeal is to be paid by the respondent. M PIENAAR ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA I AGREE AND IT IS SO ORDERED, R TOLMAY JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA I AGREE AND IT IS SO ORDERED, H KOOVERJIE JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA Heard on                        :  12 November 2025 Date of judgment          :   18 December 2025 APPEARANCES Counsel for the Appellant            : Advocate P de Klerk Instructed by                               :  Mashini Attorneys Reference                                   :  M0018 No appearance for the respondent [1] Nasal and Others v Mutual & Federal Insurance Co Ltd 1996 2 SA 184 (T). sino noindex make_database footer start