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Whenever a party brings an action for damages before the court, not only is there an onus to prove the basis (cause of action)upon which such claim is premised on, but also how the quantum of the damages was arrived at. Sometimes a plaintiff may file their claim or action without adequate evidence to substantiate the damages, which may be rectified later by amending the particulars of claim. However, where the plaintiff neglects the duty to substantiate the claim and/or damages, it may run the risk of being dismissed.

The immediately above became manifest in the case of Mdluli v Road Accident Fund (2594/2018) [2022] ZAMPMBHC 46 (24 June 2022), where the court absolved the defendant from the instance (the civil procedure equivalent of the criminal procedure section 174 discharge).

The plaintiff brought an action for loss of support against the Road Accident Fund (RAF), an action which was initially defended before the RAF terminated the mandate of their legal representatives, and the matter became undefended.

The plaintiff and the deceased (a medical doctor) had been married out of community of property, and two minor children had been born out of the marriage relationship. While driving in White River (Mpumalanga), the deceased was involved in a motor vehicle accident on 7 November 2015 while in the company of Ms Nyathi, who was a front seat passenger in the vehicle driven by the deceased. The testimony of Ms Nyathi, pointed out that the motor vehicle accident was as a result of the negligence of the driver of the other vehicle involved in the accident. The deceased succumbed to the injuries and passed away.

The plaintiff lodged a RAF claim for loss of support, in the amount of R4 million, which amount was not initially substantiated in the particulars of claim as to how it was arrived at. However in his testimony, Mr Potgieter (an actuary) testified that the calculations for loss of support amounted to about R6 300 000-00, before incorporating the various attendant contingencies including the cap as prescribed by the 2008 amendment Act to the Road Accident Fund Act 56 of 1996 (RAF Act). After factoring in these contingencies, the amount came down to R4 353 071-00. Due to this inconsistency and before delivering its judgment, the court requested (via email) the attorneys of the plaintiff to deliver amended particulars of claim, reflecting an adjustment to the quantum. The attorneys of the plaintiff duly delivered the amended particulars of claim, albeit reflecting an amount of R6 million.

In delivering judgment, the court held that neither the amount of R6 million in the amended particulars of claim nor the amount of R4 million in the initially filed particulars of claim, were reflective of the accurate loss of the plaintiff which was explained by the actuary in court. The accurate amount of loss was not contained in any court process before the court. Therefore, the plaintiff failed to demonstrate patrimonial loss in the claim, which is a crucial element. The court held that in considering whether to absolve a defendant from the instance, the court must ask itself ‘whether or not there is evidence upon which a court, applying its mind reasonably to such evidence, could or might and not should, nor ought to, find for the plaintiff were the matter to proceed to finality,’ as espoused in the matter of Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A). The court found that the action of the plaintiff fell short in this regard, and absolved the defendant from the instance.

It may so happen that while racing against time before a claim against the RAF prescribes, a party lodges a claim without adequate information, supporting documents nor substantiated evidence. Court procedures are strict in such circumstances and it is definitely advisable to undertake adequate preparation, provide sufficient particulars as may be required before an action is commenced with. Had the plaintiff’s process which commenced the action reflected the actual loss as calculated by the actuary, the plaintiff would not have ran the risk of their claim being dismissed. Proving all the elements too, is as important.

Road accident fund claims are fraught with several technical and legal hurdles, and it is important to seek expert legal assistance before embarking on the process.  

We assist in a wide range of legal services including Road Accident Fund claims and family law. We are available to consult with parties on appointment. Contact us for comprehensive assistance.


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