Luyanda Mda v Road Accident Fund

On 19 February 2021 at approximately 05:00-06:00, the plaintiff Luyanda Mda was driving a white Isuzu bakkie (HPS 270 EC) on the N2 road near Jojweni Location between Mthatha and Qumbu in the Eastern Cape. He was taking a child to school and was accompanied by Nceba (front passenger) and a child in the back seat. The weather was misty and the road surface was wet. As the plaintiff was descending near the second turn, a grey Toyota bakkie (NJ 72404) driven by an insured driver appeared approaching from the front. Due to the mist, the plaintiff could not see it at a distance. The insured driver's vehicle was straddling the middle lane and encroaching on the plaintiff's lane. With rails on his left side, the plaintiff could not swerve left. He braked but the vehicles collided on the plaintiff's side of the road. The collision occurred on the front driver's side of the plaintiff's vehicle, damaging the fender and door. After impact, the plaintiff's vehicle turned and crossed into the fast lane, while the insured driver's vehicle ended up on top of the rails. The insured driver passed away immediately after the collision. The parties agreed to separate merits from quantum in terms of Rule 33(4).

• Whether the plaintiff established negligence on the part of the insured driver to succeed in his claim against the Road Accident Fund
• Whether there was any contributory negligence on the part of the plaintiff
• Whether the insured driver was the sole cause of the accident
• Whether the defendant (RAF) is liable to compensate the plaintiff for damages arising from the motor vehicle accident in terms of section 17(1) of the Road Accident Fund Act

a) The defendant is held liable for all damages suffered by the plaintiff as a result of the motor vehicle accident that occurred on 19 February 2021 on the N2 road near Jojweni Location between Mthatha and Qumbu, Eastern Cape. b) The defendant to pay costs of trial on Scale B.

1. To succeed in a claim against the Road Accident Fund, a plaintiff must establish at least 1% negligence on the part of the insured driver. Once the plaintiff proves the occurrence giving rise to an inference of negligence, the defendant must produce evidence to the contrary or risk judgment being given against it. 2. In terms of section 16 of the Civil Proceedings Act 25 of 1965, judgment may be given in civil proceedings on the evidence of a single competent and credible witness. 3. A driver cannot be expected to handle a vehicle perfectly under imperfect weather conditions (such as mist), but is expected to handle the vehicle with caution, mindful that negligence or recklessness might affect other road users. 4. Where an insured driver encroaches onto the plaintiff's lane and the plaintiff only becomes aware when the vehicle is too close due to poor visibility, and the plaintiff's only available response is to brake, this establishes sole negligence on the part of the insured driver with no contributory negligence by the plaintiff. 5. Under section 17(1)(a) and (b) of the Road Accident Fund Act 56 of 1996, 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 driver has been established.

The court made several non-binding observations: 1. The court commented on the quality of the defendant's witness evidence, noting that "the less I say about Mr. Khuthu's evidence, the better it is for everyone, particularly the defendant's case" - expressing strong dissatisfaction with the investigator's testimony. 2. The court observed on the defendant's argument regarding the plaintiff's duty to hoot or flash lights: "It would be an absurdity for this court to expect of any driver to handle his vehicle perfectly while driving under imperfect conditions." 3. The court noted the duty of a defendant in civil matters, citing Neuyebauer & Co LTD v Bodiker & Co (SA) 1925 AD 316 @ 321: "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." 4. The court exercised its discretion to allow the defendant to call a witness despite procedural irregularities concerning Rule 36(9) and (10), stating 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" where the plaintiff would not suffer prejudice that cannot be addressed later.

This case demonstrates the application of fundamental principles in Road Accident Fund litigation, particularly the evidentiary burden on plaintiffs to establish negligence and the approach courts take when assessing credibility in the absence of extensive documentary evidence. It illustrates the court's willingness to accept the evidence of a single credible witness in civil proceedings per section 16 of the Civil Proceedings Act. The judgment also reinforces that drivers cannot be expected to react perfectly under imperfect weather conditions, but are expected to exercise caution. It provides guidance on how courts assess the reliability of investigative evidence that is largely based on hearsay and inaccurate documentation, and demonstrates the proper application of Rule 33(4) separation of merits and quantum. The case also shows the court's discretion in allowing late evidence in the interests of justice while protecting against prejudice.