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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 LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 41398/2019

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

DATE: 12 December 2023

SIGNATURE:

 

In the matter between:

 

NKOSINATHI SHARP NOLUSU                          Plaintiff

 

and

 

ROAD ACCIDENT FUND

CLAIM NO: 509/12838282/05/0                            Defendant

 

JUDGMENT

 

CAJEE AJ:

 

1.         This is an application for default judgment following the striking out of the Defendant's defence by Mabesele J on the 30th of March 2022 for its failure to comply with court orders and rules of court aimed at ensuring that the matter was trial ready.

 

2.         At the hearing of the matter, which was held in open court, Mr. Grobelaar appeared for the Plaintiff. He applied for a separation of issues between liability and quantum and for the matter to proceed only on the issue of liability. I granted the application. I further ordered that I would require the Plaintiff and his witnesses to testify in the matter.

 

3.         Mr. Ngomana from the Road Accident Fund's unit in the office of the State Attorney represented the Defendant. I allowed him to cross examine the Plaintiff and his witness, but only to the extent necessary to test the veracity of their testimonies, based on the documentation at hand.

 

4.         Before dealing with the testimony of the Plaintiff, I set out below a short chronology of relevant events leading up to this application:

 

4.1.      The Plaintiff was allegedly involved in a motor vehicle accident on the 3rd of June 2018. He was allegedly attempting to get into a motor vehicle when the driver allegedly drove off before he could fully get inside. Neither the identity of the driver nor registration number of the vehicle are allegedly known to the Plaintiff.

 

4.2.      A claim was lodged with the Defendant on the Plaintiff's behalf by his attorneys of record on the 1oth of June 2019 encompassing, inter alia, the following documents:

 

4.2.1.  An RAF1 claim form with the completed statutory medical claim form by Dr. Sisanda Mabude dated the 4th of April 2019. In ii, Dr. Mabude records that the Plaintiff was admitted to hospital on the 3rd of June 2018. No date of discharge is recorded. He records that the Plaintiff suffered multiple abrasions to his right palm and left knee, a contusion of the left knee and blunt abdominal trauma and abrasions to the hypochondrium (ie, both sides of the abdomen below the ribs). In the claim form it is further alleged that the Plaintiff was a passenger at the time of the incident.

 

4.2.2.  A special power of attorney dated the 7th of August 2018.

 

4.2.3.  Copies of the clinical notes and hospital records from the Emfuleni Mediclinic emergency centre and hospital. In the admission form at the emergency centre dated the 3rd of June 2018 it is stated that the Plaintiff arrived at 19h15 and discharged at 23h00. He was accompanied by his girlfriend. He gave a history that

 

"he was at a friend's house on his way out - patient climb into the back of a vehicle - but it was not his girlfriend's vehicle, then the owner of the vehicle drag him forward, left leg was injured, abrasion laceration left leg."

 

There is a further note in what appear to be the emergency centre notes that he was handed over to the ward staff fully conscious at 22h55. There is a note in the general assessment section of the hospital records indicating that he was admitted at 23h50. It is further recorded that

 

"Patient says he was at his friends house his girlfriend came to fetch him, he came out of the house there were two cars looking alike outside he went to the front car climb at the back, then he realise its not his girlfriends car, then the driver of that vehicle drove the car forward left leg on the ground he injured his right arm."

 

4.2.4.  A statutory affidavit by the Plaintiff in terms of section 19(f)(i) of the RAF Act 56 of 1996, commissioned before a commissioner of oaths on the 25th of September 2018. The following description of how the accident occurred is recorded as follows:

 

"3

 

I was awaiting my lift when I saw the vehicle parked. I went to the driver and greeted him. I went round the vehicle to get in at the back seat behind the front

 

passenger, as there was also a front passenger in the vehicle. I opened the left back door. My right foot was already in the vehicle while my left foot was still on the ground outside the vehicle. The next moment the driver of the vehicle pulled of without any indication while my left foot was still outside the vehicle. I fell out of the vehicle but my right foot was stuck. I screamed to the driver to stop as he was dragging me along. The driver of the vehicle stopped, but before I could get my right foot out of the vehicle the driver pulled off again, still dragging me along. As the driver wanted to execute a right hand turn, I managed to get my right foot out of the vehicle after which the driver sped off."

 

"4

 

I was taken to Emfuleni Medi-Clinic by private vehicle where I was treated for injuries sustained and discharged after about two and a half weeks."

 

"5

 

I went to the SAPS to report the matter, but they refused to open a case and an accident report. I was referred to various people in the police station without anyone assisting me. There (sic) reason was that the driver of the vehicle could think that I wanted to hijack him"

 

4.3.      Summons was issued on the 25th of November 2019. In it, inter alia, the Plaintiff alleged that he was a passenger at all relevant times. A plea, incorporating two special pleas relating to the Plaintiff's claim for General Damages, emanating from the offices of Twala Attorneys, the Defendant's erstwhile attorneys of record, was served on the 14th of February 2020. They subsequently withdrew as the Defendant's attorneys of record on the 1st of September 2021. All subsequent process and notices were served on the Defendant directly at its offices at No. 1[...] J[...] Avenue, Parktown, which was reflected as the last known address of the Defendant in the Notice of Withdrawal as Attorneys of Record. It is noted from paragraph 8 of the plea that it is denied that the Plaintiff had complied with the relevant provisions of the Road Accident Fund Act before summons was issued. This issue was thus one that the Plaintiff was still required to prove at the hearing of this matter.

 

4.4.      An order compelling the Defendant to comply with several requests in terms of the rules of court was granted by Mahalelo J on the 22nd of November 2021. The Defendant failed to comply and its defence was struck out on the 30th of March 2022 and the Plaintiff granted leave to proceed to Default Judgment.

 

5.         Prior to the hearing of the initial Default Judgment application, the Plaintiff deposed to a further affidavit on the 5th of April 2023 the relevant portion of which reads as follows:

 

"2.

 

I hereby confirm that on 3 June 2018 I was involved in a motor vehicle collision.

 

3.

 

On 3 June 2018 I was involved doing coaching duties of scholars in hockey. After the coaching we left with a taxi and went to 1[...] A[...] Avenue in Bedworthpark and had a braai.

 

4.

 

I did not have my own transport and arranged with a lady, who had a Polo vehicle to take me home.

 

5.

 

At approximately 19h00 I walked out of the house and was accompanied by Junior (Masebulele). Junior was known to me as he was a supporter of the hockey team and always joined us during coaching, matches and when we had a braai

 

6.

 

I walked to the Polo which was stationary in front of the house at 1[...] A[...] Avenue in Bedworthpark. I greeted the driver who was unknown to me and I also greeted the lady and asked them whether it was okay and whether I could get into the vehicle to have a lift with them. They nodded their heads.

 

7.

 

I walked to the left back door of this Polo and opened the door. I put my right foot into the vehicle and my left foot was still on the ground outside the vehicle.

 

8.

 

The next moment, unexpectedly the driver of the Polo vehicle pulled off without warning me and drove on. I fell out of the vehicle but my right foot was stuck in the vehicle. The driver drove on for at least 15 meters and I screamed to the driver to stop as he was dragging me along.

 

9.

 

The driver of the vehicle then stopped, but before I could get my right foot out of the vehicle, the driver pulled off again, still dragging me along for approximately 40 to 50 meters. Luckily at that stage my foot was freed from the vehicle. The driver of the vehicle drove off.

 

10.

 

After this incident I tried on several occasions to get the details of this driver but was unsuccessful. I also did not have the registration number of the vehicle.

 

11.

 

I was injured seriously and was in hospital for approximately three weeks. Thereafter I went to Vereeniging Police Station and tried to register my accident at the police station. I was referred to the Commander who referred me to a Detective and this Detective referred me to an Inspector. They indicated to me that because I did not have the details of the driver they are not prepared to assist me and to supply me with a road accident report".

 

6.         The matter was initially set down for Default Judgment on the 13th of April 2023, when the RAF brought an application for a postponement. The application was granted and the matter set down once again on the 12th of September 2023 when it served before me.

 

7.         The Plaintiff was lead by Mr. Grobelaar. He testified in English that:

 

7.1.      He was injured in a motor vehicle accident on the 3rd of June 2018. His most recent affidavit in support of the Application for Default Judgment was read into the record, and he confirmed his signature at the bottom thereof and the contents thereof.

 

7.2.      He testified that on the day in question he had a moonboot on his right leg.

 

He said he wore a moonboot as a safety precaution to protect a previous injury to his right foot, being a fracture of his right big toe. He further testified that he was walking with the aid of crutches.

 

7.3.      With reference to his female friend, he testified that she was the driver of a silver Polo. He sent her a location of where to pick him up via his cellphone.

 

7.4.      When he came out of the house he saw a silver Polo similar to hers and he assumed that it was hers. He testified that it was already slightly dark and the street lights were not working. His lady friend's vehicle was actually parked further away.

 

7.5.      The Plaintiff testified that he went to the driver and noticed that there was a lady who resembled his lady friend sitting in the passenger seat. He assumed it was her and greeted the driver and asked if he could get in. They nodded their assent.

 

7.6.      He testified that after putting his crutches inside the vehicle, he put his right foot into the vehicle when without any warning the driver drove off before he could get properly inside, causing him to fall and to be dragged along. The driver stopped momentarily but before he could get his foot out he took off again, dragging him along once again. The driver then came to a bend and he was able to free his leg. His lady friend who was parked further down the road noticed this, picked him up and took him to the hospital. She was a hospital manager. When it was pointed out that the hospital records spoke of a girlfriend, he denied this, stating that his girlfriend never came to the hospital.

 

7.7.      Under cross examination the Plaintiff stated that the house in question was a student house where some of the hockey players stayed. He testified that during the braai he didn't drink anything.

 

7.8.      Under questioning from me, the Plaintiff testified that he had known his lady friend for a long time, for approximately 25 years. He testified that her name was Ntletsi but that her surname was not known to him.

 

8.         The next person to testify was Mr. Masebulele Bango. He confirmed the contents of an affidavit he deposed to on the 13th of April 2023 at the Vereeniging SAPS, and same was read into the record. The material aspects of thereof read as follows:

 

3.

 

I hereby confirm that on 3 June 2018 I was with Mr. Nkosinathi Sharp Nolusu. He assisted with the training of hockey players and after we went to Bedworthpark where we had a braai.

 

4.

 

At approximately 19h00 I accompanied Mr. Nolusu outside the house as he indicated to me that he had a lift and I accompanied him. I saw Mr. Nolusu greeting the driver and a front passenger in a grey Polo motor vehicle and then he went to the left back door of the vehicle to get into the vehicle.

 

5.

 

I greeted Mr. Nolusu and I heard the car speeding off. I heard Mr. Nolusu screaming and as I turned around I saw that the car was driving with the left back door still open and Mr. Nolusu being half in the vehicle and half out of the vehicle.

 

6.

 

Mr. Nolusu was dragged alongside the vehicle as it seems that his right foot was stuck in the vehicle.

 

7.

 

I then run behind this vehicle to alert the driver. It seemed that after a short distance he would stop but he then pulled away again with Mr. Nolusu still being dragged behind the vehicle. Likely Mr. Nolusu was then freed from the vehicle and the car drove off."

 

9.         Mr. Bango further testified that his friends call him Junior. Under cross examination Mr. Bango testified that at the time of the incident he was one of the residents of the house. He accompanied the Plaintiff to the font of the gate when the Plaintiff informed him that his lady friend had arrived. He further testified that he was next to the right back door of the vehicle when the Plaintiff was speaking to the driver. He only saw the silhouette of the driver of the Polo. He did not see the Plaintiff speak to both occupants of the car. He further testified that he saw the Plaintiff getting into the car and that he was not yet fully inside. He also testified that at the time the Plaintiff had an injury to his right leg and was wearing a cast on his foot. He did not know the Plaintiff's lady friend. He also testified that the Plaintiff confirmed to him that the car was the one he was waiting for and that the Plaintiff made certain that it was the right car before getting inside. He further testified that the Plaintiff was making use of crutches at the time. Under questioning from me Mr. Bango testified that he didn't notice anyone sitting next to the driver of the Polo. He testified that after the incident he and the Plaintiff's lady friend helped the Plaintiff inside the house where they treated him before taking him to the hospital. Mr. Bango testified that the driver of the Polo was probably waiting for one of the people inside the house. He identified this person as a lady who was also an occupant of the house, but could not provide any further details.

 

10.       In his submissions Mr. Grobelaar submitted that the evidence established that the Plaintiff was injured while in the process of getting into the vehicle. According to Mr. Grobelaar the section 19(f) affidavit was only meant to be a rough sketch and not a detailed version of how the accident happened. According to him the detailed version was contained in the affidavit in support of the application for default judgment as per a directive of the Deputy Judge President of the North Gauteng High Court. I disagree with this submission. While it is true that a detailed comprehensive affidavit should accompany any application for default judgment, as in many cases it would take the place of the testimony required of a Plaintiff without the need to call him or her to the stand, I cannot accept that it detracts from the duty on a Plaintiff to provide as comprehensive and as detailed an affidavit as possible to the RAF especially in cases involving unidentified vehicles. This is to enable the RAF to carry out a comprehensive investigation into the circumstances of an accident.[1]

 

11.       In his further submission Mr. Grobelaar stated that there is no onus on a Plaintiff to identify an insured driver. He submitted that the RAF did not make use of their opportunity to interview and interrogate the Plaintiff, which was right given to them by the RAF Act 56 of 1996 and the regulations thereto in cases involving unidentified vehicles. I disagree with the first part of this submission. The Plaintiff himself in his affidavit in support of the Default Judgement application stated that he tried several times unsuccessfully to identify the driver of the insured vehicle, but in his testimony in court didn't elaborate on what those attempts were.

 

12.       In his submissions Mr. Ngomana submitted that the affidavit in support of the application for Default Judgment didn't supplement the statutory affidavit. I agree with this submission.

 

13.       If one reads the affidavit in support of the application for Default Judgment, it is clear that it leaves more questions than answers. It clearly indicates that the lady mentioned in paragraph 4 thereof is the same lady mentioned in paragraph 6 thereof, in the absence of any allegation or explanation to the contrary therein.

 

14.       Further, in the statutory affidavit the Plaintiff does not even mention that the front seat passenger in the vehicle he tried to get into was a lady, nor that he mistook her for the lady friend he was expecting to pick him up. It is further highly improbable that the Plaintiff would not know the surname of his lady friend whom he had known for at least 25 years. It is further notable that she was not called to testify, despite her allegedly being an important eye witness to his accident. I got the impression that he was trying to conceal the identity of this lady friend for reasons known only to himself.

 

15.       It is also notable that while one would not expect the versions contained in the hospital records to be comprehensive, they nonetheless contain important details not contained in either of the Plaintiff's affidavits, namely that the Plaintiff mistook the car he tried to get into as the one normally driven by his lady friend.

 

16.       Further, it is unexplained why the Plaintiff did not mention the fact that he was wearing a moonboot and was making use of crutches in any of his affidavits before court. This only came out in his testimony and that of Mr. Bango in court.

 

17.       It appears that with each attempt the Plaintiff was trying to put forward a more exculpatory version, but he only succeeded in creating more uncertainty and doubt.

 

18.       I also find the Plaintiff's version as to why there was no police accident report submitted to the RAF to be unconvincing and highly improbable. He doesn't mention in any of his affidavits the dates when he allegedly went to the police station or the names of the police officers who refused to help him. There is no correspondence from his attorneys of record to the Station Commander requesting that they complete and provide him with a copy of the police accident report[2]. Further, the reasons given in the statutory affidavit as to why the police officers refused to help him are at odds with those in the affidavit in support of the Default Judgment application.

 

19.       The only thing that can be said to have been established on a preponderance of probabilities, in the light of the contemporaneous notes in the hospital records, is that the Plaintiff tried to get into a motor vehicle without first establishing that it was the correct one he was meant to get into. This in all probability spooked the driver into taking off, an understandable reaction given the unfortunately high levels of crime in our country. I found the Plaintiff to be an unreliable and evasive witness who tried to make exculpatory statements in order to exonerate himself of any possible blame.

 

20.       In the premises, the Plaintiff's action stands to be dismissed.

 

21.       I make the following order:

 

21.1.   The Plaintiff's claim is dismissed.

 

CAJEE AJ

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

JOHANNESBURG

DATE HEARD:                                 12th SEPTEMBER 2023

DATE OF JUDGMENT:                   12TH DECEMBER 2023

 

APPEARANCES:

COUNSEL FOR THE PLAINTIFF:	Mr. Des Grabler
INSTRUCTED BY:	Mills & Groenewald
COUNSEL FOR DEFENDANT:	Mr. T. Ngomana
INSTRUCTED BY:	State Attorney

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