Ryan Khumalo v Road Accident Fund

The plaintiff, Ryan Khumalo, brought an application for default judgment against the Road Accident Fund arising from a motor vehicle collision that occurred on 10 September 2023 at approximately 07:30 am near Taylor Road and Monyana Road, Orange Farm, Johannesburg. The collision involved a motor vehicle bearing registration number LG76WPGP driven by Khanjelwayo and motor vehicle bearing registration number PPN309GP driven by Tshepo Ernest Mokgotho. The plaintiff submitted a Section 19(f) affidavit in support of his claim, but this affidavit made no reference to the plaintiff being present at the scene, did not specify whether he was a passenger or pedestrian, and contained no allegation of negligence or description of how the collision occurred. After the court uploaded a note on 26 April 2025 at 15:22 indicating the matter was not ripe for hearing due to these defects, an amended Section 19(f) affidavit was filed on 29 April 2025 at 10:11 am, after court proceedings had commenced. Additionally, at least two expert affidavits tendered in support of the application were not properly commissioned - the experts signed the documents which were then simply stamped and signed by the commissioner without the experts taking the oath.

• Whether the plaintiff had complied with the mandatory requirements of Section 19(f) of the Road Accident Fund Act in submitting a valid claim
• Whether the original Section 19(f) affidavit was sufficient to establish compliance with the RAF Act
• Whether the filing of an amended Section 19(f) affidavit after commencement of proceedings constituted a waiver of the plaintiff's entitlement to rely on deemed compliance under Section 24(5) of the RAF Act
• Whether Section 24(6)(b) of the RAF Act rendered the claim unenforceable as legal proceedings may have been commenced before all requirements of Section 19(f) were complied with
• Whether expert affidavits that were improperly commissioned (without the deponent taking the oath before the commissioner) were admissible
• Whether the plaintiff had discharged the onus of proving all allegations in the particulars of claim in a default judgment application

1. The plaintiff's application for default judgment is dismissed. 2. Neither the plaintiff's attorney nor counsel may recover any fees relating to the default judgment application from either the plaintiff or the defendant. 3. A copy of this judgment must be forwarded to the Legal Practice Council, Gauteng, by the registrar for the LPC's consideration, given the conduct of the members of the LPC in the purported commissioning of the affidavits.

The binding legal principles established by this judgment are: (1) In default judgment applications under the Road Accident Fund Act, the plaintiff bears the full onus of proving compliance with all statutory requirements, including Section 19(f), which requires an affidavit fully setting out particulars of the accident; (2) A purported Section 19(f) affidavit that fails to place the plaintiff at the scene of the accident, fails to specify the plaintiff's role (passenger or pedestrian), and fails to allege negligence or describe how the collision occurred does not constitute compliance with Section 19(f) of the RAF Act; (3) Affidavits commissioned by a commissioner of oaths where the deponent does not actually take the oath before the commissioner but merely signs a document that is subsequently stamped and signed by the commissioner are not properly commissioned and are procedurally defective; (4) Where fundamental defects in statutory compliance are identified by the court and an attempt is made to cure them by filing amended documents after commencement of proceedings, this raises questions of law that require proper argument and written submissions rather than determination in the context of an unopposed default judgment application.

The court made several important obiter observations: (1) The filing of an amended Section 19(f) affidavit after commencement of proceedings may imply that the plaintiff has waived the opportunity to claim compliance with the RAF Act in accordance with deemed compliance under Section 24(5) of the RAF Act; (2) Section 24(6)(b) of the RAF Act may render a claim unenforceable where legal proceedings are commenced by summons before all requirements of Section 19(f) have been complied with; (3) If an affidavit filed during proceedings is accepted as the Section 19(f) affidavit, this may imply that the legal proceedings were premature as a completed claim was only submitted on that date; (4) The High Court is not the correct forum to ventilate important legal questions arising from attempted cures of statutory non-compliance without proper written submissions by both parties; (5) The filing of an amended Section 19(f) affidavit opened the door for the defendant to participate in at least that aspect of the litigation, despite it being nominally a default judgment application; (6) The practice of improper commissioning of affidavits "flies in the face of the obligation of a legal practitioner and the commissioner"; and (7) The court possesses inherent jurisdiction to refer matters of professional misconduct to the Legal Practice Council and may do so where the conduct of legal practitioners warrants consideration by the regulatory body.

This case is significant in South African law for several reasons: (1) it reinforces the principle that the onus on a plaintiff in default judgment proceedings is the same as in contested proceedings - all allegations must be proved; (2) it emphasizes the mandatory and substantive nature of compliance with Section 19(f) of the Road Accident Fund Act, requiring that the affidavit must fully set out particulars of the accident including the plaintiff's presence, role, and the negligence alleged; (3) it highlights that attempts to cure fundamental defects in statutory compliance after proceedings have commenced raise serious questions about waiver, prematurity and enforceability that require proper ventilation; (4) it underscores the importance of proper commissioning of affidavits, particularly expert affidavits, requiring that the deponent actually take the oath before the commissioner rather than merely having documents stamped and signed; (5) it demonstrates the court's willingness to refer matters of professional misconduct to the Legal Practice Council where legal practitioners fail to discharge their duties properly; and (6) it serves as a warning to practitioners about the consequences of attempting to proceed with applications that are not ripe for hearing despite clear judicial indication.