Man wins RAF case without witnesses to his accident

A Pretoria man whose Road Accident Fund (RAF) claim was rejected as he had collided with a tree, successfully appealed against the decision in the high court, with only his version of events accepted as evidence.

Mike Botha failed in his bid to claim from the RAF for an October 2016 accident. He instituted legal action against the RAF, with the fund giving notice of intention to defend, and filing a plea. However, the RAF’s defence was struck out as it failed to comply with the rules of the court regarding advancing the case to trial-ready.

A date was set for February 6 2022, and as the RAF was absent from the trial, the court proceeded based on a default judgment.

Botha was the only witness who testified, telling the court he was a supervisor of security officers at Loftus Versfeld Stadium. On October 28 2016, a music festival was held at Loftus, and about 10.30pm, Botha left Loftus, driving his Nissan 1400 bakkie to his son’s house in Pretoria Gardens.

He drove through the Daspoort tunnel and when he stopped at a stop sign, a VW Polo stopped on the left lane next to him. Inside were four “well-built” men and the driver of the Polo made a threatening sign to Botha, indicating he was going to cut his throat, Botha told the court.

He interpreted the sign to mean the occupants of the Polo wanted to harm or hijack him, so he drove off to the nearest police station. While slowing down for a speed hump, the Polo then bumped Botha’s bakkie from behind, causing him to lose control of his vehicle.

Botha told the court he ended up on the extreme right-hand side of the road and could not recall accurately, but thinks he hit a pole or a tree. He said he only regained consciousness three days later at Kalafong Hospital having suffered serious injuries.

For eight months after the accident, he was unable to walk without the help of a walking frame. Once he was able to walk, he went to report the collision to the police, but his report was rejected as too much time had passed since the collision.

In the circumstances, the evidence of [Botha] established not only that a collision in fact occurred, but also the negligence of the driver of the VW vehicle in its causation

—  Acting judge NA Engelbrecht

He said he did not know the driver of the Polo nor any of its occupants, and could not identify them or the vehicle they were driving.

After giving his evidence, Botha was questioned at length by the court and asked if there was any evidence he was hit from behind. Botha told the court he had a tow bar at the back and the Polo hit it, and he lost control of his bakkie.

Asked about any damage to his car, Botha said he discovered it was completely written off when he was discharged from hospital. He said his son had organised a tow truck to remove the vehicle from the scene.

Once Botha gave his evidence of what caused the collision, the court dismissed his action on the basis that he failed to establish the involvement of another vehicle or the negligence of the driver of such vehicle.

The court was not satisfied that Botha did not prove that a collision had happened as there was no evidence corroborating his version, no accident report and his son did not testify. The court also found there was no evidence relating to the damage to the back of his bakkie.

A person is not eligible to claim from the RAF if they were the sole cause of the accident, such as hitting a tree. A claimant also has to show negligent driving did not cause the collision. 

Botha approached the Pretoria high court to appeal against the decision.

Acting judge NA Engelbrecht found that the previous court did not just ask Botha questions for clarity but to get evidence favourable to the RAF and aligned with the reasons given for repudiating the claim.

Engelbrecht said the court’s decision that Botha failed to disclose material facts was a credibility finding based on inferences drawn from the questions asked by the court. “The appellant was never informed that any such credibility finding would be made against him by the court in consequence of the court’s decision to nonsuit him. In this regard, his fair trial right was impinged.”

The judge said it was not improbable the driver of a vehicle which was hit from the back would lose control of the vehicle, as Botha testified. “In the circumstances, the evidence of [Botha] established not only that a collision in fact occurred, but also the negligence of the driver of the VW vehicle in its causation."

Engelbrecht upheld Botha’s appeal and ordered that 100% of his damages arising from the injuries suffered due to the accident be paid to him.

The determination of the amount of damages was postponed indefinitely.