THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 138/2020

In the matter between:
PHILLIPUS ARNOLD VENTER DU PLESSIS
APPELLANT

and

ROAD ACCIDENT FUND

RESPONDENT

Neutral citation:
Venter Du Plessis v RAF (138/2020) [2021] ZASCA 64 (26 May
2021)
Coram:
NAVSA, DAMBUZA and MOCUMIE JJA and POTTERILL and
EKSTEEN AJJA
Heard:
4 May 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and release to SAFLII. The time and date for hand down are deemed to be at 09h45
on 26 May 2021.
Summary:
Evidence–Onus of proof- whether the appellant failed to establish on a
balance of probabilities that the insured driver negligently caused the collision –
whether the trial court erred in not accepting the appellant’s version concerning the
point of impact – whether credibility findings ought to have been made against the
driver of the insured vehicle.

ORDER

On appeal from:  Eastern Cape Division of the High Court, (Bloem J and Nhlangulela
DJP, concurring & Jaji J dissenting, sitting as a full court.)
The appeal is upheld with costs.
The order of the full court is set aside and substituted with the following:
‘(a)
The appeal is upheld with costs;
(b)
The order of the court below is set aside and substituted as follows:
“1.
The plaintiff’s claim succeeds;
1.1 The defendant is ordered to pay the plaintiff the sum of R 1 778 550;
1.2 The defendant is ordered to pay interest on the aforesaid amount at the
prescribed legal rate of interest from fourteen days after the date of this
order to date of payment.
1.3 The defendant is ordered to furnish the plaintiff with an undertaking in
terms of s 17(4) (a) of the Road Accident Fund Act, No. 56 of 1996 as
amended.
1.4 The defendant is ordered to pay the plaintiff’s taxed party and party
costs, including the costs of the photographs and the reasonable and
necessary qualifying fees and expenses of the following expert
witnesses if any:
1.4.1 Dr Olivier;
1.4.2  Ansie Van Zyl;
1.4.3 Dr Peter Whitehead; and
1.4.4 Actuary Willem Boshoff.
1.5 The defendant is ordered to pay interest on the plaintiff’s taxed party and
party costs at the prescribed legal rate of interest from the date of
allocatur to the date of payment.”’

JUDGMENT

Mocumie JA (Navsa, Dambuza JJA and Eksteen and Potterill AJJA concurring)

[1] At approximately 19h00 on 27 September 2014, a collision occurred close to
the intersection between Buffelsfontein and Glendore road, Port Elizabeth, between a
650cc Suzuki motorcycle driven by the appellant, Mr Phillipus Arnoldus Venter Du
Plessis, and a motor vehicle with registration number FHC 286 EC, driven by the
insured driver, Mr Shad Sampson. The appellant’s motor cycle was struck by the
insured driver’s vehicle, as a result of which he suffered severe bodily injuries, more
particularly; a fracture of the left tibia and a fracture of the left lateral malleolus. In his
claim against the Road Accident Fund (the RAF) the parties agreed on the quantum
of his damages at R1 778 550. In addition, the RAF agreed to furnish him with an
undertaking in terms of s 17 (4) (a) of the Road Accident Fund Act, in the event that
he succeeded on the merits, subject to any applicable apportionment of liability.
Accordingly, the only issue that the trial court had to decide was whether the collision
was caused by negligence on the part of the insured driver, and if so whether there
was contributory negligence on the part of the appellant. In the trial court, Goosen J,
concluded that ‘the collision was caused by the appellant’s negligence inasmuch as
he drove his motorcycle into the intersection; into the path of an oncoming vehicle
when it was unsafe and inopportune to do so’. The appellant appealed, with the leave
of the trial court, unsuccessfully to the full court (Bloem, J and Nhlangulela, DJP
concurring, Jaji, J dissenting). This appeal is with special leave of this Court.

[2] The collision occurred at the intersection of Buffelsfontein and Glendore roads.
It is a T-junction with Glendore road joining from the southern side of Buffelsfontein
road. Buffelsfontein road is a straight main road with a single carriageway that runs in
an east-west direction. Where the collision occurred, the two lanes in Buffelsfontein
road are separated by a solid barrier line and the road runs through a built up area. At
the intersection there is a stop sign for traffic from Glendore road, turning either left or
right into Buffelsfontein road. On the north of Buffelsfontein road, after one has turned

right from Glendore road, there is large lawn separated from Buffelsfontein by a gravel
filled verge. The lawn extends northwards to a road that runs parallel to Buffelsfontein
road. Immediately north of that road is the housing complex where the appellant lived.
Between the gravel verge and the grassed area there are short wooden poles
preventing access onto the lawn by cars. A short distance from the intersection after
one has turned right into Buffelsfontein road is a lamppost. Before one gets to the
lamppost there is a no parking sign. The appellant usually steers his bike through the
wooden posts to get to the housing complex, utilising a footpath.

[3] At the time of the collision it was already dark and visibility was not good, but,
the street lights were on. As it had been raining, the road surface was wet. So, too,
was the gravel part. The footpath was covered with water.

[4] As alluded to already, the appellant was returning home after meeting some
friends and travelling on Glendore road towards the stop street to join Buffelsfontein
road. His version, briefly, was as follows. He had enjoyed lunch with his friends until
around 16h00 on the other side of the city and was on his way home on his motorcycle.
At the intersection of Buffelsfontein and Glendore roads he stopped at the stop street,
looked around, saw no oncoming motor vehicle and turned right into Buffelsfontein
road. About 45 metres from the intersection, he pulled off to his left side on
Buffelsfontein road and stopped on the gravel verge; with his foot on the ground. His
intention was to take a short-cut across the gravel and grass between Buffelsfontein
road and his home. But that day it had been raining and there was water on the
footpath that he normally uses to reach his home a few meters away. Just as he put
his foot down on the gravel to attempt to gently manoeuvre away from the puddles
and through the wooden obstacles he was struck at the back of the motorcycle by the
insured vehicle.

[5] After the collision, his motorcycle was lying in the vicinity of the wooden
barricades alongside the road, to the north. In the trial court he used a sketch plan to
depict the point of impact, on the gravel verge, north of Buffelsfontein road. He also
testified with reference to photographs of the scene. As a result of the collision, he lost
consciousness and was taken to hospital where he recovered.

[6] The insured driver’s version of the collision was different. The essential parts of
his testimony are set out hereafter. He stated that he was driving along Buffelsfontein
road and approached the intersection in an easterly direction. As he approached the
intersection, he saw the lights of the motorcycle which ‘just went over the stop street’
and appeared in front of him. The motorcycle travelled across Buffelsfontein road into
his path. He applied brakes, but it was too late and he collided with the left side of his
motor vehicle against ‘the back of the motorcycle, on the left’. He depicted the point of
impact by making an asterisk on the photo placed before the court by the appellant to
be on the tarred surface of Buffelsfontein road. The two drivers were the only
witnesses who testified.

[7] The trial judge was conscious that there were mutually destructive versions. It
is to be noted that the trial court made no credibility findings, save, as appears from
the passage of the judgment referred to immediately hereafter, there is a suggestion,
without substantiation, that the appellant’s, and perhaps neither witness’ evidence was
impeached. He held as follows: ‘Neither the plaintiff nor the insured driver impressed
as outstanding witnesses. Their evidence is each subject to some criticism, inasmuch
as it was vague in certain respects. The fact that neither witness stood out as a
particularly impressive witness does not mean that either witness’s version is to be
rejected as not credible. Where a court is faced with a conflict in evidence by witnesses
[whose] credibility cannot be impeached, it will have regard to the inherent probabilities
and improbabilities in the versions in determining which version to accept’.

[8] The trial court went on to consider the probabilities. Its finding in this regard is set
out in para 21 of the judgment, which is set out hereafter as follows:
‘In my view, the plaintiff’s description of the point of impact and, in particular, that the
motorcycle was stationary and that his right foot was on the gravel at the point of impact is
highly improbable. It would suggest that he had already driven along Buffelsfontein road for
the distance of approximately 45m and that he had already driven his motorcycle off the
tarmac surface onto the gravel and brought it to a halt, prior to the insured driver braking
heavily to avoid the collision. It would suggest that the braking had caused the vehicle to veer
off the tar surface so that it could impact the motorcycle. Far more probable, in my view is the
version presented by the insured driver. His evidence was that the motorcycle had approached
the intersection at Glendore Road slowly but that it did not stop. Instead, it entered the

intersection directly in front of him into his path of travel at an angle across Buffelsfontein. He
applied brakes heavily but, due to the wet conditions, the vehicle skidded striking the
motorcycle.’

[9] The trial judge disagreed with the contention on behalf of the appellant that ‘the
point of impact as described by the [appellant] accords with the objective evidence,
namely that the motorcycle was struck from the rear and that it had fallen onto its right
side, which was damaged and that the motor cycle had come to rest on the gravel
verge’. Goosen J, in the trial court, held that the damage to the motor vehicle and the
position it came to rest after the collision and the damage to the insured driver’s motor
vehicle do not, with any force of probability point to the mechanism of collision as
described by the [appellant]’. He held furthermore, that ‘for the collision to have
occurred in that manner with the point of impact being on the gravel verge, it would
necessarily mean that the insured driver had either driven off the tar surface or that
the vehicle had skidded off the tar surface before impacting with the [motorcycle]’. On
that basis, he concluded that ‘the plaintiff’s description of the point of impact, and in
particular that the [motorcycle] was stationary and his right foot was on the gravel at
the point of impact is highly improbable. . .’

[10] The trial court concluded that ‘the collision was caused by the appellant’s
negligence inasmuch as he drove his motorcycle into the intersection; into the path of
an oncoming vehicle when it was unsafe and inopportune to do so’. On appeal, the
majority in the full court agreed with the trial judge.

[11] Before this Court, the main issue for determination is whether the trial court
erred in dealing with the two irreconcilable versions in the manner that it did. A court
of appeal is generally reluctant to disturb the factual findings of a trial court but will do
so where such findings are based on false premises or where relevant facts have been
ignored or where the conclusions are plainly wrong.1 Overemphasis of the advantages
which a trial court enjoys is to be avoided lest an appellant’s right of appeal ‘becomes

1 R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 was recently cited with approval in Beukes v Smith
[2019] ZASCZ 48 para 22, and Competition Commission of South Africa v Media 24 (Pty) Limited [2019] ZACC;
2019 (9) BCLR 1049 (CC); 2019 (5) SA 598 (CC) (3 July 2019) para 135 and ST v CT (1224/16) [2018] ZASCA
73; [2013] 3 All SA 408 (SCA); 2018 (5) SA 479 (SCA) (30 May 2018) para 12.

illusory’.2 ‘It is equally true that the findings of credibility cannot be judged in isolation
but require to be considered in the light of the proven facts and the probabilities of the
matter under consideration.’3

[12] Where, as in the present case, there are conflicting versions, this Court stated
in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and
Others4
‘[5]
The technique generally employed by courts in resolving factual disputes of this nature
may conveniently be summarised as follows. To come to a conclusion on the disputed issues
a court must make findings on (a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular
witness will depend on its impression about the veracity of the witness. That in turn will depend
on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the
witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii)
internal contradictions in his evidence, (iv) external contradictions with what was pleaded or
put on his behalf, or with established fact or with his own extra curial statements or actions,
(v) the probability or improbability of particular aspects of his version, (vi) the calibre and
cogency of his performance compared to that of other witnesses testifying about the same
incident or events. As to (b), a witness’s reliability will depend, apart from the factors
mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction
and its evaluation of the general probabilities in another. The more convincing the former, the
less convincing will be the latter. But when all factors are equipoised probabilities prevail. . .’

[13] As is clear from the judgment of the trial court, despite the conflicting evidence
on the point of impact, the trial judge preferred the version of the insured driver but did
not employ the Stellenbosch Farmers’ Winery technique referred to above. To that

2 Protea Assurance Co. Ltd. v Casey 1970 (2) SA 643 (7) 648 D-E and Munster Estates (Pty) Ltd v Killarney Hills
(Pty) Ltd 1979 (1) SA 621 (A) 623H – 624A.
3 Santam Bpk v Biddulph [2004] ZASCA 11; [2004] 2 All SA 23 (SCA) (23 March 2004) para 5.
4 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and Others [2002] ZASCA 98 (6
September 2002) at 141 to 150E.

extent, the trial court erred. This Court is therefore duty bound to consider the evidence
afresh.5

[14] Applying the Stellenbosch Farmers’ Winery principles, first, the question of
credibility. In his evidence-in-chief the insured driver stated that he saw the appellant
stop at the crossroad, who then suddenly went across the road in front of him causing
him to apply brakes late, but he could not avoid the collision, which occurred on the
tarmac with the left hand-side of his vehicle striking the motorcycle at the back. This
is contrary to what was put to the appellant. It was put by counsel for the respondent
to the appellant that he had entered the intersection at an angle, without stopping at
the stop sign. This was also contrary to what the insured driver had said in his
statement to the respondent when he reported the collision. The following is the
relevant part of the statement:
‘I noticed the [motorcyclist] stop at the intersection waiting for oncoming vehicles.
When I was right opposite the intersection, the motorcyclist pulled off and collided with my
vehicle left front side. . . I did not know where the [appellant] was when [I applied] brakes.
I did not see the [appellant] but saw the brake lights, the back of the [motorcycle] . . . I was not
sure where the collision took place but was sure that his vehicle did not swerve from the tarred
road onto the gravel. . .’
(Emphasis added).

[15] These contradictions are material and clearly impact negatively on the insured
driver’s credibility and this ought to have redounded in favour of the appellant, as held
by Jaji J in the dissenting judgment.

[16] Yet another contradiction was elicited under cross examination.
‘Your evidence was that he, [the appellant], was in the middle of the road… If you don’t know
where he was you can say so.
I don’t know where he was…
In your own words when you braked it was too late.
It was too late, ja…
You saw his lights and you got a fright, is that correct
Ja. Yes…

5 See fn 1 above.

And that braking, when you got a fright, that hard braking caused your vehicle to skid…
…Yes…’
This is not only a contradiction but it favours the appellant, in that it supports his version
of events and leads one compellingly to the conclusion, on the insured driver’s own
version, that he was not keeping a proper lookout and explains how he suddenly came
upon the motorcycle without there being any time at all to take evasive action.

[17] The motorcycle was found after the collision, approximately 50 metres away
from the intersection, on the gravel. That is in line with the appellant’s version of
travelling some distance slowly into Buffelsfontein road, to identify the best route
through the barricades. In line with this stated purpose, one would have expected a
much reduced speed and that it would take a commensurate period of time travelling
eastwards to get to that point providing every opportunity for an oncoming motorist to
see him. It also militates against the version of the sudden driving across the
intersection into the path, at an angle, of the insured driver’s vehicle. Additionally, the
photographs of the damage to the motorcycles presented at trial favours the
appellant’s version in that it appears that it was struck from behind rather than on the
left-hand side. Thus, the objective evidence supports the appellant’s version of events.

[18] On the probabilities, if one accepts the insured driver’s version that his lights
were on then it would have been suicidal for the appellant to suddenly swerve in front
of him. That is not only improbable but at odds with the objective evidence set out
above.

[19] Counsel for the respondent came into this case at the eleventh hour because
of the administrative chaos that prevails at the respondent’s offices.  Nonetheless, he
made a valiant attempt at persuading us to find that there was contributory negligence
on the part of the appellant, on the basis that he had entered the intersection when it
was unsafe to do so. For all the reasons set out above, the ineluctable conclusion is
that the collision was occasioned by the sole negligence of the insured driver. The trial
court and the full court holding otherwise, without considering the factors set out
above, courts erred. The appeal must succeed.

[20] In conclusion, it is necessary to record the following. The original attorney for
the respondent withdrew from the matter. A new firm of attorneys received instructions
sometime in late April 2021. A notice of substitution of attorneys and an application for
a postponement was filed on the morning of the hearing (4 May 2021). No heads of
argument had been filed. Counsel for the respondent, Mr Erasmus, as could be
expected of a senior officer of the court, rightly, on behalf of the respondent,
apologised for the manner in which the appeal had been conducted. He indicated that
he had briefed the night before (3 May 2021). Given that the record of proceedings in
the trial court and before the full court comprised only 1 volume, of which
approximately only approximately 70 pages constituted evidence counsel was willing
to take some time before the hearing before us commenced to acquaint himself with
the record and thereafter to present argument, which he did most ably, avoiding a
punitive costs order and an injustice to the appellant.

[21] In the result, the following order is made.

Order
1.
The appeal is upheld with costs.
The order of the full court is set aside and substituted with the following:
‘(a) The appeal is upheld with costs;
(b)
The order of the court below is set aside and substituted as follows:
“1
The plaintiff’s claim succeeds;
1.5
The defendant is ordered to pay the plaintiff the sum of R 1 778 550;
1.6
The defendant is ordered to pay interest on the aforesaid amount at the
prescribed legal rate of interest from fourteen days after the date of this
order to date of payment.
1.7
The defendant is ordered to furnish the plaintiff with an undertaking in
terms of s 17(4) (a) of the Road Accident Fund Act, No. 56 of 1996 as
amended.
1.8
The defendant is ordered to pay the plaintiff’s taxed party and party
costs, including the costs of the photographs and the reasonable and
necessary qualifying fees and expenses of the following expert
witnesses if any:

1.4.1 Dr Olivier;
1.4.2 Ansie Van Zyl;
1.4.3 Dr Peter Whitehead; and
1.4.4 Actuary Willem Boshoff.
1.5 The defendant is ordered to pay interest on the plaintiff’s taxed party and
party costs at the prescribed legal rate of interest from the date of
allocatur to the date of payment.”’

___________________

BC MOCUMIE
JUDGE OF APPEAL

Appearances

Counsel for Appellant
D Niekerk SC
Instructed by

Mc Williams & Elliot Inc

Webbers Attorneys, Bloemfontein, 9301

Counsel for Respondent
MC Erasmus SC and WTB Ridgard
Instructed by

Ramulifho Inc.

Lawrence Masiza Vorster Inc., Port Elizabeth, 6001
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

26  May 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Venter Du Plessis v RAF (138/2020) [2021] ZASCA 64(26 May 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment wherein it upheld the appeal against
an order of the Eastern Cape Division of the High Court; and ordered the Road Accident Fund (RAF),
the respondent, to pay the costs incurred in the preparation, perusal and copying of the record on an
attorney and client scale.

The issues before the SCA were whether Mr Phillipus Arnoldus Venter Du Plessis (the appellant) failed
to establish on a balance of probabilities that the insured driver negligently caused the collision; whether
the trial court erred in not accepting the appellant’s evidence regarding the point of impact in dealing
with two irreconcilable versions on the point of impact and the general approach to adopt when dealing
with rear end collisions; taking into account the extra-curial statement made by the insured driver to
RAF.

The SCA held that the appellant proved, on a balance of probability, that the insured driver was
negligent in his conduct and that the RAF can therefore not escape liability; lamenting that the trial court
together with the full court, made no finding on the statement and nor did the two courts make any
reference to it or its impact on the evidence of the insured driver as a whole. SCA upheld the appeal
with costs.