Dercksen v Road Accident Fund (67254/2021) [2024] ZAGPPHC 970 (3 October 2024)
- Citation
- [2024] ZAGPPHC 970
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Makhoba
- Case number
- 67254/2021
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Makhoba
- Case number
- 67254/2021
On this page
Professional case brief
Research organized from the available case record
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 KooverjieRoad Accident Fund
Defendant03
Procedural history
Posture
Civil Trial / Merits Only; Quantum Postponed Sine Die
04
Questions and positions
Legal issues
- 01
Whether the plaintiff proved on a balance of probabilities that the defendant is liable for damages arising from the motor vehicle accident.
- 02
Whether any negligence can be attributed to the plaintiff or the insured drivers.
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
Legal principles
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
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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