Botha v Kirk Attorneys (EL 257/2016, ECD757/2016) [2019] ZAECELLC 1 (22 January 2019)

/ / News, 2019, Civil Procedure


Mr. Lucian Botha (“the Plaintiff”), carrying on his trade as a building contractor was involved in a motor vehicle accident on or about 5 April 2013. The said accident, wherein the Plaintiff veered off the road owing to the negligence of an unidentified driver as argued by his counsel, resulted in him sustaining severe injuries which include, inter alia a cervical fracture.

The Plaintiff sought the relief against, Kirk Attorneys, a firm of attorneys duly registered in terms of South African law, carrying on its business in East London (“the Defendant”). The Defendant in the matter duly undertook to assist the Plaintiff to recover damages from the Road Accident Fund (herein “RAF”). Which subsequently gives rise to the current action brought against the Defendant and not the fund itself.

It is argued that the Defendant who undertook to assist the Plaintiff with his claim acted negligently in its duties towards its client by allowing the claim to prescribe. It is further argued that because the accident occurred on 5 April 2013, a claim against the RAF would have lapsed on or about 4 April 2015, in accordance with regulation 2 (1) (b) of the Road Accident Fund Regulations which reads as follows:

“A right to claim compensation from the Fund under section 17(1)(b) of the Act in respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of neither the owner nor the driver thereof has been established, shall become prescribed upon the expiry of a period of two years from the date upon which the cause of action arose, unless a claim has been lodged in terms of paragraph (a)”.

The Defendant in the present matter disputes any liability to the Plaintiff, and moreover challenges the existence of any involvement of an unidentified motor vehicle in the accident, thus attacking the credibility of a viable claim held by the Plaintiff against the fund.

The issues to be decided by the court were the following:

  1. whether the Plaintiff would have been successful in his claim against the RAF;
  2. was the Defendant negligent; and
  3. whether on a balance of probabilities, there was an existance of negligence by an unidentified driver which resulted in the Plaintiff’s injuries.



The court in its ratio emphasised the position in our law, being that he who asserts has a duty to discharge the onus of proof.

The court focused on the guidelines as set out in Stellenbosch Farmers’ Winery Group & Another v Martell ET CIE & Others, which guidelines are employed in instances where factual disputes arise and where one is required to ascertain the real state of affairs which exist.

Such guidelines require that a court makes its finding’s based on, but not limited to, (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.

In respect of the credibility of a witness it was argued by the Defendant that the inherent contradictions in the Plaintiff’s testimony viz-a-viz his written statements made to other functionaries, including the police and hospital staff as well as against the objective facts must also be considered by the court in deciding the onus of proof.

In the matter, counsel for the Plaintiff, premised their argument on the contention that the Defendant bears the onus of proving that there was no other vehicle involved in the accident and that the Plaintiff’s entire version is fictitious, which argument the court subsequently dismissed. The learned judge stated that the Defendant only had an evidentiary burden and that the onus remained with the Plaintiff which onus could have been successfully discharged by tending credible evidence.

The court held, that the internal contradictions in the Plaintiff’s evidence coupled with the external contradictions with the response’s given in the particulars for trial purposes as to what caused the accident, ensured that the court remained unmoved and thus the Plaintiff’s case was dismissed with costs as a result.



This judgment highlights the principle regarding who bears of onus of proof in civil matters. Namely, that it rests with he who alleges. The case demonstrates further that in certain instances the court will take credibility of a witness into consideration in deciding onus of proof.

Written by Kyle Venter and supervised by Dingumuzi Ndhlovu, 19 February 2019

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