Nxumalo v Road Accident Fund (87438/2023) [2025] ZAGPJHC 397 (27 March 2025)
- Citation
- [2025] ZAGPJHC 397
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Weideman
- Case number
- 87438/2023
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Weideman
- Case number
- 87438/2023
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the plaintiff, as a pedestrian walking after dark with his back to traffic, contributed to the occurrence of the accident. However, the defendant failed to present evidence to contradict the plaintiff's version, which was found to be plausible. The parties agreed to an apportionment of negligence, with 80% liability allocated to the defendant and 20% to the plaintiff. The court granted the plaintiff's applications under Rule 38(2) for evidence by affidavit and Rule 33(4) for separation of liability and quantum, postponing the quantum aspect sine die. Costs were awarded to the plaintiff as the substantially successful party, including counsel's fees for both hearing dates.
Court disposition
Plaintiff's applications granted; defendant liable for 80% of proven damages; costs awarded to plaintiff.
Orders
- The plaintiff's application in terms of Rule 38(2) is granted.
- The plaintiff's application in terms of Rule 33(4) for separation of liability from quantum, and postponement of quantum sine die, is granted.
- The defendant shall be liable to the plaintiff for 80% of such damages as the plaintiff may be able to substantiate.
- The plaintiff is entitled to his costs as taxed or agreed.
- Counsel's fees to be on Scale B, including fees for 25th and 27th March.
02
Material facts
Parties
Nkosinathi Nxumalo
PlaintiffRoad Accident Fund
DefendantAmounts and remedies
- Liability Apportionment in Favour of Plaintiff (%): 80
03
Procedural history
Posture
Civil Trial / Liability Determination; Interlocutory Applications
04
Questions and positions
Legal issues
- 01
Whether the plaintiff was negligent in the circumstances of the accident.
- 02
Whether the defendant is liable for damages arising from the collision.
- 03
Whether liability and quantum should be separated for trial purposes.
Party arguments
- Applicant
- The plaintiff argued that he was a pedestrian walking next to the road after dark when a truck and trailer collided with him. He submitted that, although he may have contributed to the accident, the defendant should bear the majority of the liability. He requested separation of liability and quantum, and postponement of the quantum aspect sine die.
- Respondent
- The defendant conceded that the plaintiff's conduct warranted a contribution of negligence but accepted the proposed apportionment of 80% liability in favour of the plaintiff. The defendant did not oppose the separation of liability and quantum or the postponement of the quantum aspect.
05
Court’s reasoning
Legal principles
- 01
Apportionment of Damages Act 34 of 1956
Where both parties are negligent, liability may be apportioned according to their respective degrees of fault.
- 02
Uniform Rule 33(4)
The court may order separation of issues of liability and quantum for convenience and efficiency.
- 03
Uniform Rule 38(2)
Evidence may be adduced by affidavit or written statement with leave of the court.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the plaintiff, as a pedestrian walking after dark with his back to traffic, contributed to the occurrence of the accident. However, the defendant failed to present evidence to contradict the plaintiff's version, which was found to be plausible. The parties agreed to an apportionment of negligence, with 80% liability allocated to the defendant and 20% to the plaintiff. The court granted the plaintiff's applications under Rule 38(2) for evidence by affidavit and Rule 33(4) for separation of liability and quantum, postponing the quantum aspect sine die. Costs were awarded to the plaintiff as the substantially successful party, including counsel's fees for both hearing dates.
Obiter and limits
- The court noted that the absence of contradictory evidence made the plaintiff's version plausible and acceptable.
- The separation of liability and quantum is often appropriate in cases where quantum may require further evidence or negotiation.
Court disposition
Plaintiff's applications granted; defendant liable for 80% of proven damages; costs awarded to plaintiff.
- The plaintiff's application in terms of Rule 38(2) is granted.
- The plaintiff's application in terms of Rule 33(4) for separation of liability from quantum, and postponement of quantum sine die, is granted.
- The defendant shall be liable to the plaintiff for 80% of such damages as the plaintiff may be able to substantiate.
- The plaintiff is entitled to his costs as taxed or agreed.
- Counsel's fees to be on Scale B, including fees for 25th and 27th March.
Source and reliance status
South Gauteng High Court, Johannesburg
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.
South Gauteng High Court, Johannesburg
Judgment
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION JOHANNESBURG
CASE NO: 87438/2023
DATE: 27-03-2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
NKOSINATHI
NXUMALO
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
WEIDEMAN, AJ: In the matter of N Nxumalo, I have before me two applications, the first is an application in terms of Rule 38(2) and which was discussed with counsel, when the matter was called. That application was granted.
The second was an application in terms of Rule 33(4) to separate the aspects of liability and quantum and for the aspect of quantum to be postponed sine die. That application was also granted.
As far as the aspect of liability is concerned, the evidence before Court is that the plaintiff was a pedestrian directly next to the road, after dark, walking with his back to an approaching vehicle. A truck and trailer came past and the trailer collided with him. There is no evidence before Court to gainsay that version, it is not improbable and it is plausible.
On that basis, counsel readily conceded that given the plaintiff's action there should be a contribution of negligence from the plaintiff's side and proposed an 80/20 apportionment in favour of the plaintiff.
I concur with counsel's submission and my order is therefore as follows:
ORDER
[1] The plaintiff's application in terms of Rule 38(2) is granted.
[2] The plaintiff's application in terms of Rule 33(4) for the separation of liability from quantum, and for the aspect of quantum to be postponed sine die, is granted.
[3] The defendant shall be liable to the plaintiff for 80% of such damages as the plaintiff may be able to substantiate.
[4] The plaintiff having been substantially successful is entitled to his costs as taxed or agreed.
[5] Counsel's fees to be on Scale B. The costs will include counsels fee both for the 25th and the 27th of March.
WEIDEMAN, AJ
JUDGE OF THE HIGH COURT
DATE: …………………
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