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South Africa Judgment

North Gauteng High Court, Pretoria

Dercksen v Road Accident Fund (67254/2021) [2024] ZAGPPHC 970 (3 October 2024)

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01

Holding and result

The only evidence under oath was the plaintiff's affidavit, in which he stated that he could not remember how the accident happened or whether he was a driver or passenger. Counsel's submissions contradicted the affidavit and were unsupported by evidence on record. In the absence of any evidence under oath regarding the circumstances of the collision, the plaintiff failed to discharge the onus of proof. The court could not find that the plaintiff proved his case on a balance of probabilities.

Court disposition

Plaintiff's claim on the merits is dismissed.

Orders

  • Plaintiff's claim on the merits is dismissed.
  • Defendant to pay plaintiff's costs on scale 'A'.

02

Material facts

Parties

Dercksen C J

Plaintiff Counsel: Adv R Kooverjie

Road Accident Fund

Defendant

03

Procedural history

  1. Posture

    Civil Trial / Merits Only; Quantum Postponed Sine Die

04

Questions and positions

Legal issues

Party arguments

Applicant
Counsel for the plaintiff argued that the plaintiff was a passenger in the vehicle at the time of the accident and that no negligence could be attributed to him. He relied on available evidence and submitted that the plaintiff should succeed on the merits.
Respondent
The defendant was not represented at trial and did not submit any argument or evidence.

05

Court’s reasoning

  1. 01

    Pillay v Krishna, 1946 SA 946

    The onus rests on the plaintiff to prove his case on a balance of probabilities.

06

Ratio, limits and disposition

Ratio decidendi

The only evidence under oath was the plaintiff's affidavit, in which he stated that he could not remember how the accident happened or whether he was a driver or passenger. Counsel's submissions contradicted the affidavit and were unsupported by evidence on record. In the absence of any evidence under oath regarding the circumstances of the collision, the plaintiff failed to discharge the onus of proof. The court could not find that the plaintiff proved his case on a balance of probabilities.

Obiter and limits

  • Submissions by counsel cannot substitute for evidence under oath.
  • Where the only evidence is an affidavit that does not establish the facts necessary for liability, the claim must fail.

Court disposition

Plaintiff's claim on the merits is dismissed.

  • Plaintiff's claim on the merits is dismissed.
  • Defendant to pay plaintiff's costs on scale 'A'.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2024] ZAGPPHC 970

THE

REPUBLIC OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG HIGH COURT DIVISION, PRETORIA

Case no: 67254/2021

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE: 03 OCTOBER 2024

SIGNATURE

In the matter between:

DERCKSEN

C J

Plaintiff

And

ROAD

ACCIDENT FUND

Defendant

JUDGMENT

MAKHOBA, J

[1] The plaintiff instituted an action against the defendant for damages suffered as a result of injuries sustained in a motor vehicle accident that occurred on 9 January 2019.

[2] The only issue before court is merits. The issue of quantum is to be postponed sine die.

[3] On the date of trial the defendant was not represented and an attempt to settle the matter did not yield any results. Counsel addressed the court, and the court asked him to file heads.

[4] During submissions by counsel he handed an affidavit by the plaintiff (CaseLines 05-3) setting out under oath how the accident happened.

[5] It is trite that the onus rests on the plaintiff to prove his case on balance of probabilities see Pillay v Krishna, 1946 SA 946.

[6] In his affidavit, plaintiff says the following “I cannot remember how the accident happened and or the mechanisms surrounding the accident. I also cannot remember whether or not I was a driver or passenger at the time of accident”.

[7] The plaintiff’s affidavit is the only evidence under oath in respect of merits.

[8] Counsel for the plaintiff contradicted the above affidavit in his heads of argument. He submits as follows (CaseLines 19-3) “ 2.5 From the available evidence, it is clear that no negligence can be attributed to the Plaintiff as the Plaintiff was a passenger in the vehicle when the accident occurred between the first and second insured drivers..”

[9] In my view the submissions by counsel for the plaintiff are not supported by available evidence uploaded on CaseLines.

[10] I am further of the view that in the absence of any evidence under oath on how the collision happened, the court cannot find that the plaintiff proved his case on balance of probabilities

[11] I make the following order:

11.1 Plaintiff’s claim on the merits is dismissed.

11.2 Defendant to pay plaintiff’s cost on scale “A”.

MAKHOBA

J

JUDGE

OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

HEARD AND RESERVED JUDGMENT: 28 AUGUST 2024

JUDGMENT HANDED DOWN ON: 03 OCTOBER 2024

Appearances:

For the Applicant: Adv R Kooverjie (instructed by) Gildenhuys Malatji Incorporated For the Respondent: N/A.

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Authorities

Authorities used by the court

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Pillay v Krishna, 1946 SA 946

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