Mmaphuti Maria Kgolane obo M K v Road Accident Fund

The appellant instituted an action for damages against the Road Accident Fund (RAF) arising from injuries allegedly sustained by her minor child (MK, aged 3 at the time) in a motor vehicle collision on 8 October 2013. The action was commenced on 16 October 2018. On 7 November 2018, the RAF made an offer to settle the issue of negligence only, expressly reserving all other procedural and substantive rights. The appellant accepted this limited offer. On 11 February 2019, Phatudi ADJP granted an order stating that the RAF was 100% liable for agreed or proven damages and ordering the RAF to furnish an undertaking in terms of s 17(4)(a) of the Road Accident Fund Act. The matter proceeded to trial on remaining issues as a default judgment since the RAF did not appear. The appellant's legal representatives presented no viva voce evidence, only expert reports without confirming affidavits. The trial court found material discrepancies in the expert reports regarding the nature of injuries allegedly sustained and dismissed the claims on 29 December 2021.

• Whether the order by Phatudi ADJP (the Phatudi order) resolved the issue of causation between the collision and the injuries alleged to have been suffered
• What effect, if any, the order for a s 17(4)(a) undertaking had on the requirement to prove injuries and consequential loss
• Whether the trial court correctly dismissed the claims in the absence of admissible evidence proving the injuries and loss suffered
• Whether expert reports without confirming affidavits and without viva voce evidence constitute sufficient proof in a default judgment for unliquidated damages

The appeal was dismissed with no order as to costs. The Registrar of the Court was directed to deliver a copy of the judgment to the Legal Practice Council of South Africa for its consideration regarding the conduct of the appellant's legal representatives.

The binding legal principles established are: (1) A settlement agreement limited to the negligence of an insured driver does not settle causation or the existence and extent of injuries and consequential loss; (2) An order for the furnishing of an undertaking in terms of s 17(4)(a) of the Road Accident Fund Act does not, in the absence of a specific determination or agreement, resolve the question of what injuries were caused by the collision or whether such injuries gave rise to compensable loss; (3) In delictual claims, all elements must be independently proved: wrongfulness, negligence, causation (factual and legal), harm, and quantification of loss; (4) In undefended actions for unliquidated damages, the default position is that viva voce evidence must be led - expert reports without confirming affidavits and without viva voce evidence do not constitute admissible and sufficient proof; (5) The failure to present any properly admissible evidence at a default hearing is fatal to a claim and dispositive of the matter.

The Court made several important observations: (1) While the full court stated broadly that settlement on 'merits' is only settlement of negligence and that a s 17(4)(a) undertaking does not concede injuries, these principles are not absolute and depend on the facts and circumstances of each case; (2) The Court expressed serious concern about how the Phatudi order came to be made in terms inconsistent with the settlement agreement filed of record, raising questions about the process when the order was granted; (3) The Court noted grave concerns about the conduct of the appellant's legal representatives in making averments and submissions directly contradicting the record, particularly regarding claims that the RAF had 'given an undertaking' and that injuries were 'common cause' - this violated the duty not to mislead the court and warranted referral to the Legal Practice Council; (4) The Court commented that the RAF's absence during critical litigation phases was 'inexplicable' and 'may well have been reckless', noting that when the RAF fails to participate, courts are placed in an invidious position and must exercise special care; (5) The Court emphasized that legal representatives have an even higher duty to maintain absolute fidelity to facts when a matter proceeds in the absence of an affected party, especially when a settlement is to be recorded in a court order.

This case reinforces fundamental principles of civil procedure and evidence in South African law. It emphasizes that: (1) settlement of 'merits' or negligence does not automatically settle all elements of a delictual claim, particularly causation and damages; (2) a court order for a s 17(4)(a) undertaking does not, without more, constitute proof of injuries or consequential loss; (3) in undefended actions for unliquidated damages, viva voce evidence is required and expert reports without confirming affidavits are insufficient; (4) each element of a delictual claim must be independently proved; and (5) legal representatives have a duty of absolute fidelity to the facts and must not mislead the court, with heightened responsibility when the opposing party is absent. The case also highlights concerns about the RAF's failure to participate in litigation and the consequent burden placed on courts to scrutinize claims carefully.