, PLEASE USE THIS DOCUMENT AS A GUIDE TO ANSWER YOUR ASSIGNMENT
QUESTION 1
1. Critically discuss Ngubane v RAF 2022 (5) SA 231 (GJ), a copy of which is provided for your
reference. Your answer must clearly demonstrate that you have read and understood the case.
Critical Discussion of Ngubane v Road Accident Fund 2022 (5) SA 231 (GJ)
The case of Ngubane v Road Accident Fund presented the Gauteng High Court with a legally
complex and morally significant issue regarding the transmissibility of general damages after the
death of a plaintiff. Central to the dispute was the intersection between long-standing common law
principles, evolving constitutional jurisprudence, and the practical need to offer remedies to the
estates of deceased claimants. The judgment delivered offers a thorough exploration of these
dynamics, ultimately reaffirming the constraints on judicial development of common law in the
absence of direct constitutional conflict.
Facts of the Case
On 27 February 2019, Simphiwe Bongayiphi Ngubane was involved in a motor vehicle collision and
subsequently instituted an action against the Road Accident Fund (RAF) for general damages on 11
August 2020. The RAF was served with the summons on 14 August 2020 but failed to respond,
leading to an uncontested default judgment application. Before the matter could progress, Ngubane
passed away on 25 February 2021. The executor of his estate was substituted as plaintiff, and the
court was asked to determine whether the general damages claim could survive Ngubane’s death.
Although procedural compliance with the RAF Act was established and liability on the part of the
RAF was accepted due to the unopposed evidence, the court was compelled to consider whether the
estate had a valid claim to general damages under these circumstances1.
Legal Question
The legal issue at the heart of the dispute was whether a claim for general damages survives the
death of a plaintiff who passes away prior to the point of litis contestatio, and can thus be transmitted
to the estate for continuation by the executor1.
Judgment and Ratio Decidendi
The court dismissed the general damages claim, holding that the estate had no legal right to pursue it.
Although the RAF was found fully liable for any proven damages, no compensable damage could be
awarded because general damages were the only claim made. At the core of the court’s reasoning
was the affirmation of a long-standing common law rule that general damages claims are not
transmissible if the plaintiff dies before litis contestatio—generally synonymous with the close of
pleadings. In this matter, since the RAF had never filed a notice of intention to defend or delivered
any pleadings, litis contestatio had not occurred prior to the Plaintiff's death1. While the court
explored the Roman-Dutch law notion of "fictitious joinder" due to the defendant's failure to defend,
it found this doctrine inapplicable as a default judgment had not yet been granted at the time of
death.
1: Ngubane v Road Accident Fund (2020/20008) [2022] ZAGPJHC 275; 2022 (5) SA 231 (GJ) (26 April 2022).
QUESTION 1
1. Critically discuss Ngubane v RAF 2022 (5) SA 231 (GJ), a copy of which is provided for your
reference. Your answer must clearly demonstrate that you have read and understood the case.
Critical Discussion of Ngubane v Road Accident Fund 2022 (5) SA 231 (GJ)
The case of Ngubane v Road Accident Fund presented the Gauteng High Court with a legally
complex and morally significant issue regarding the transmissibility of general damages after the
death of a plaintiff. Central to the dispute was the intersection between long-standing common law
principles, evolving constitutional jurisprudence, and the practical need to offer remedies to the
estates of deceased claimants. The judgment delivered offers a thorough exploration of these
dynamics, ultimately reaffirming the constraints on judicial development of common law in the
absence of direct constitutional conflict.
Facts of the Case
On 27 February 2019, Simphiwe Bongayiphi Ngubane was involved in a motor vehicle collision and
subsequently instituted an action against the Road Accident Fund (RAF) for general damages on 11
August 2020. The RAF was served with the summons on 14 August 2020 but failed to respond,
leading to an uncontested default judgment application. Before the matter could progress, Ngubane
passed away on 25 February 2021. The executor of his estate was substituted as plaintiff, and the
court was asked to determine whether the general damages claim could survive Ngubane’s death.
Although procedural compliance with the RAF Act was established and liability on the part of the
RAF was accepted due to the unopposed evidence, the court was compelled to consider whether the
estate had a valid claim to general damages under these circumstances1.
Legal Question
The legal issue at the heart of the dispute was whether a claim for general damages survives the
death of a plaintiff who passes away prior to the point of litis contestatio, and can thus be transmitted
to the estate for continuation by the executor1.
Judgment and Ratio Decidendi
The court dismissed the general damages claim, holding that the estate had no legal right to pursue it.
Although the RAF was found fully liable for any proven damages, no compensable damage could be
awarded because general damages were the only claim made. At the core of the court’s reasoning
was the affirmation of a long-standing common law rule that general damages claims are not
transmissible if the plaintiff dies before litis contestatio—generally synonymous with the close of
pleadings. In this matter, since the RAF had never filed a notice of intention to defend or delivered
any pleadings, litis contestatio had not occurred prior to the Plaintiff's death1. While the court
explored the Roman-Dutch law notion of "fictitious joinder" due to the defendant's failure to defend,
it found this doctrine inapplicable as a default judgment had not yet been granted at the time of
death.
1: Ngubane v Road Accident Fund (2020/20008) [2022] ZAGPJHC 275; 2022 (5) SA 231 (GJ) (26 April 2022).
