Moemise v Road Accident Fund (8386/21) [2025] ZAGPPHC 686 (3 July 2025)

Moemise v Road Accident Fund (8386/21) [2025] ZAGPPHC 686 (3 July 2025)

The court found that the insured driver was negligent in colliding with the plaintiff, who was jogging with his back to traffic, and then fleeing the scene. Applying the diligens paterfamilias test, the insured driver should have foreseen the possibility of causing harm and taken reasonable steps to avoid the accident. The plaintiff, however, was also found contributorily negligent for running with his back to traffic rather than facing oncoming vehicles, thereby failing to exercise reasonable care for his own safety. The court held that, despite the defendant's failure to plead contributory negligence, it may apportion liability where the evidence supports such a finding. Based on the...

Citation
[2025] ZAGPPHC 686
Parties
Plaintiff: Sibusiso Moemise; Defendant: Road Accident Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 July 2025
Case Number
8386/21
Procedural Posture
Civil Trial / Merits Only; Quantum Separated and Postponed Sine Die
Outcome
Liability apportioned: defendant 70%, plaintiff 30%. Merits decided; quantum postponed sine die.
Judges
T Mamanyuha
Legal Topics
Road Accident Fund Act, Negligence, Contributory Negligence, Default Judgment
Delict Civil Procedure Road Accident Fund Act Negligence Contributory Negligence Default Judgment

Case Brief

Summary, issues, holding and outcome

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Parties

Sibusiso Moemise

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Merits Only; Quantum Separated and Postponed Sine Die

Legal Issues

  1. 1 Was the insured driver negligent in causing the accident involving the plaintiff?
  2. 2 Is the plaintiff contributorily negligent for running with his back to traffic rather than facing oncoming vehicles?
  3. 3 Can the court apportion liability for contributory negligence where the defendant failed to plead it?

Ratio Decidendi

The court found that the insured driver was negligent in colliding with the plaintiff, who was jogging with his back to traffic, and then fleeing the scene. Applying the diligens paterfamilias test, the insured driver should have foreseen the possibility of causing harm and taken reasonable steps to avoid the accident. The plaintiff, however, was also found contributorily negligent for running with his back to traffic rather than facing oncoming vehicles, thereby failing to exercise reasonable care for his own safety. The court held that, despite the defendant's failure to plead contributory negligence, it may apportion liability where the evidence supports such a finding. Based on the...

Court Disposition

Liability apportioned: defendant 70%, plaintiff 30%. Merits decided; quantum postponed sine die.

Orders

  • Plaintiff's application in terms of Rule 38 is granted.
  • Defendant's liability for injuries and damages is separated from quantum.