Nomana Kalipha v Road Accident Fund

On 26 January 2022, the plaintiff alleged she was knocked down by an unknown vehicle while walking on a road near Coffee Bay Junior Secondary School around 22h00. She claimed to have heard a bang and then fell down in the middle of the road, sustaining a right ankle (Webber III) injury. She did not see the vehicle, hear a hooter, or see headlamps before the incident. Luyanda Tshemese found her and told her she had been hit by a car. She was subsequently admitted to Zithulele Hospital and transferred to Bedford Hospital for treatment. The plaintiff issued summons on 22 February 2023 claiming R3,300,000 in damages. The RAF denied liability, alleging the injury did not result from an accident or that the plaintiff was solely or contributorily negligent. The RAF's defence was struck out on 18 June 2024 for failure to comply with discovery. The plaintiff then applied for default judgment. The court heard only the liability issue, separating quantum for later determination.

• Whether the plaintiff established on a balance of probabilities that her injury arose from the negligent driving of a motor vehicle as required by section 17 of the Road Accident Fund Act 56 of 1996
• Whether the plaintiff, as a single witness whose evidence was based partly on hearsay, provided credible evidence sufficient to support a default judgment
• Whether an inference of negligence could be drawn from circumstantial evidence where the plaintiff did not witness how the accident occurred
• Whether the plaintiff discharged the onus of proof in a default judgment application despite the striking out of the defendant's defence

The application for default judgment was refused.

In an application for default judgment against the Road Accident Fund, even where the defendant's defence has been struck out, the plaintiff must still establish on a balance of probabilities that: (1) bodily injury was sustained; and (2) the injury arose from the negligent driving of a motor vehicle. The plaintiff's evidence must be credible and based on proven facts, not conjecture or inadmissible hearsay. Where the plaintiff relies on circumstantial evidence, the inference sought to be drawn must be consistent with all proved facts and must be the more natural or plausible conclusion. The failure to call a crucial witness who allegedly had direct knowledge of how an accident occurred, combined with material inconsistencies and improbabilities in the plaintiff's evidence, will result in the plaintiff failing to discharge the onus of proof required for a default judgment.

The court observed that the plaintiff's evidence appeared 'superficial, as though tailored.' The court also noted that for someone who kept looking around while walking alone at night, the plaintiff had difficulty explaining where and at what stage Luyanda Tshemese emerged to assist her. The court remarked that it would be improbable that a person in sober senses, walking on a quiet road and constantly looking around for possible hazards, would not see or hear an approaching vehicle. These observations on credibility, though not strictly necessary for the decision, provide guidance on how courts assess witness credibility in motor vehicle accident claims.

This case demonstrates that even where a defendant's defence has been struck out for non-compliance with court rules, a plaintiff in a Road Accident Fund claim must still discharge the onus of proving on a balance of probabilities that the injury arose from the negligent driving of a motor vehicle. The judgment reinforces the principle that default judgments are not automatic and require credible evidence. It illustrates the application of the rules governing single witness testimony, hearsay evidence, and inferential reasoning in civil litigation. The case emphasizes that courts will scrutinize the credibility and probabilities of a plaintiff's case even in default proceedings, and will not draw inferences based on speculation or conjecture where crucial facts are missing or witnesses are not called.