Van Wyk Van Heerden Attorneys

This article investigates what is expected of a reasonable driver, looks at the threshold of what is required to still be considered a reasonable driver in a sudden emergency, and gives an overview of what is required to prove negligence in a motor vehicle accident.

Duties of a reasonable driver:

Among the duties of a motorist are: to keep a proper look-out, drive at a reasonable speed, observe the rule of the road (keep to the left), allow for lateral movement, follow another vehicle at a safe distance and maintain his vehicle in a roadworthy condition.[1] These duties may seem obvious to the reader, but the high amount of accidents on the South African roads are an indication that a lot of motorists don’t go to the trouble of adhering to the most basic requirements a motorist is expected to follow.

The rule of the road:

Because the observance of the rule of the road – which requires traffic to keep to the left of the centre of the road – is of such importance, a motorist keeping to his side of the road is entitled to assume that approaching traffic will do likewise. Even when an approaching vehicle is on its incorrect side of the road, a driver on his correct side should assume that the former will return timeously to its correct side of the road. A driver who becomes aware of a dangerous situation must however still do everything in his/her power to avoid an accident, and if it is possible to avoid an accident by swerving to the opposite side of the road, given that there is no traffic coming from the opposite direction, must do it. However, very rarely, will a driver be acting unreasonably by remaining on his correct side of the road.[2]

A large number of accidents do, however, occur due to one vehicle overtaking another when it is not safe to do so. When the driver of a vehicle is about to overtake and pass another vehicle, it is the duty of the driver to keep a proper lookout to establish whether he/she can safely overtake.[3] If a driver overtakes another vehicle when it is not safe to do so, the onus cannot possibly be placed on traffic coming from the opposite direction to avoid an accident. It remains the duty of the overtaking vehicle to ensure that it is safe to do so, and should it come to the driver’s attention that he/she will not be able to overtake without colliding with traffic from the opposite direction, he/she must apply his/her brakes and get back in the lane in which he/she was originally driving as soon as possible.

Duties of a reasonable driver in a sudden emergency:

In deciding what the reasonable driver would have done in the position of a driver who is faced with a sudden emergency, allowance must be made for the inevitable time lag between observation and reaction, as affected by the agony of the moment, the element of surprise, and the likelihood of momentary indecision.[4]  The standard of care which a reasonable driver ought to exercise when driving in the ordinary course of events is, therefore, lowered when the driver is faced with a sudden emergency.

Where a Plaintiff is put in jeopardy by the unexpected and patently wrongful conduct of the defendant, it seems to be irrational to examine his/her conduct under a microscope and to try to envision what steps the Plaintiff could have taken to avoid an accident. To do so would be to ignore the penal element in actions on delict and to punish a possible error of judgement as severely as, if not more severely than, the most blatant disregard of the safety of others by the Defendant in overtaking a vehicle when it is not safe to do so.[5]

What constitutes prima facie proof of negligence?

When a motor vehicle drove on the incorrect side of the road and collided with an approaching vehicle, it has been held that negligence can be inferred from the nature of the accident, because the only reasonable inference was that the defendant’s driving on to the incorrect side of the road at the moment of the accident was due to his failure to exercise proper care. Proof that a vehicle was on the incorrect side of the road at the time of the collision is prima facie proof of the driver’s negligence.[6]

Lack of evidence by Defendant with regards to negligence:

If the Defendant fails to produce evidence to negate the inference of negligence, his failure to do so tilts the scale in the claimant’s favour and the latter is entitled to succeed against the Defendant. A driver’s inability to give an explanation because he is suffering from amnesia cannot operate in his favour and to the Plaintiff’s detriment. If there is no evidence to rebut the evidence led by the Plaintiff as to the Defendant’s negligence, the Plaintiff’s version must stand.


A large number of accidents would be avoided if motorists stuck to the rule of the road, and only overtook other vehicles when it was safe to do so. All motorists should be held to a high standard of care when driving. However, such a standard would be lowered if a driver was faced with a sudden emergency, caused by another driver’s negligent driving. A vehicle driving on the wrong side of the road, who causes an accident, can be held to be prima facie negligent. Should a party who was in an accident not be able to remember the accident, the other party to the accident’s version must stand. Hopefully, the dire consequences of causing an accident, will dawn on more people, and encourage them to exercise more patience when driving.

[1] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 53 – 54.

[2] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 84 – 85.

[3] Klopper H B: The Law of Collisions in South Africa, eight edition, Lexisnexis, p 53.

[4] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 92.

[5] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 92.

[6] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 100

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Bianca obtained her LLB degree from the University of Pretoria in 2013. She was admitted as an Attorney of the High Court in 2016 and subsequent as a Conveyancer in 2018. She specializes in the drafting of contracts, conveyancing and all other property related matters. She is dedicated to excellent service and good client relations.

Danie began his law career in Pretoria, Gauteng, where he opened his own law firm in 1994. Through Danie’s knowledge of the world of media and entertainment his clientele extends to music artists, celebrities, television, and film production houses. In 2000 Danie founded the firm West & Rossouw with colleague Sharon West in the Cape Town Southern Suburbs until March 2024 when Danie accepted an appointment to relocate to the fast growing Cape Winelands to join van Wyk van Heerden in their Paarl office. Danie has a strong interest in family law and High Court litigation, with vast experience in several jurisdictions and high-profile cases in the High Court, the Supreme Court of Appeal, and the Constitutional Court. Danie has been actively involved in the organized profession and served on the Cape Law Society and the Law Society of South Africa (LSSA) communication committees and several years as vice-president of the Cape Town Southern Suburbs Attorneys’ Association. During August of 2022, Danie was appointed by the Premier of the Western Cape, Alan Winde as the Western Cape Government’s representative on the Council of the Stellenbosch University.

Alicia obtained her LLB degree cum laude from the North-West University, Potchefstroom, in 2020. She commenced her articles during 2020 at Van Velden-Duffey Inc, situated in Rustenburg, where she acted as a candidate attorney in the civil litigation department.

Alicia was admitted as an Attorney of the High Court during early 2023, and currently practices as such in the litigation department of Van Wyk Van Heerden.

Maryna obtained her LLB Degree at the North West University, Potchefstroom. Originally from Clanwilliam, she went to school in Paarl at Paarl Gymnasium and returned to embark on her professional career at our firm. She joined our team in 2021 as an article clerk and was admitted as an Attorney during 2023. Maryna is currently appointed in our Estates Department in the Wellington Office.

Milton is a well organised Attorney passionate about offering multidisciplinary legal service, focusing on the best interest of his clients. He aims to provide impetus to the vision of creating new momentum in transforming the legal system. He values cost effective solutions on various matters of law, persist on a flexible approach and strive to allocate the necessary resources to satisfy his clients' needs.

Milton obtained his LLB degree in 2020 from the University of the North West. He was admitted as an attorney of the High Court of South Africa on 3 March 2023. He specializes in Civil and Commercial Litigation, Alternative Dispute Resolution, Mediation, Contracts, Sports Law, Construction Disputes and Insolvency.

Anika obtained her LLB in 2020 from the University of Stellenbosch. She completed her articles at Van Wyk Van Heerden in 2022 and was admitted as an Attorney of the High Court at the beginning of 2023.

She currently practices in the Conveyancing Department where she assists estate agencies and developers, as well as marketing of the firm.

Gawie obtained his BComm and LLB Degrees at the University of Stellenbosch during 2009 and 2011 respectively. He completed his Master of Laws during 2017 in the Law of Trusts and completed a Post Graduate Diploma in Financial Planning during 2019.

He joined the team at Becker Bergh & More Inc. for his articles in Upington during 2013 and worked at the firm for 9 years attending to litigation, conveyancing and commercial matters. He was admitted as Attorney and Notary Public during 2015 and as a Conveyancer during 2016.

Gawie was appointed in the Conveyancing and Commercial Departments of Van Wyk Van Heerden during 2022 in the Wellington Office, providing clients with expert advice on the structuring of transactions, the registration of Trusts as well as general Conveyancing.

Liesl graduated from the University of Stellenbosch with an LLB degree in 2005.  During University she developed a special interest in and passion for Family Law.  Due to the fact that Liesl specialised during her articles, she completed the Practical Legal Training Course presented by UNISA, in conjunction with her articles, which she commenced with Miller du Toit Cloete Inc in 2006.  She was admitted as an attorney of the Western Cape High Court, with Right of Appearance in 2007.

Liesl co-presented a paper titled “African Charter on the Rights of Children” at the London Metropolitan University Summer School in 2011 and received her Certificate of Completion in this regard.

Liesl commenced her articles at Miller du Toit Cloete Inc, under the guidance of Zenobia du Toit, in 2006 and went on to practise as a Senior Associate there for nearly 14 years. After moving to Paarl, she practised as a director of Family Law at Clark Cupido Attorneys.

Liesl joined Van Wyk Van Heerden Attorneys in April 2022, as head of their Family Law department.  She has practised exclusively in Family law and ancillary matters for 16 years.

Roeline specialises in Estate Administration. Roeline obtained her B.Com Law, LLB and LLM (Estate Law) degrees at North-West University in 2006, 2008 and 2010, respectively.
After she completed her articles in 2010, she joined a financial institution as an estate administrator.

She joined the team in 2022 and attends to all Estate matters.

Aleisha grew up in Durban and relocated to the Western Cape to attend the University of Stellenbosch where she completed a Bachelor of Arts Degree in Social Dynamics from 2011-2013. Thereafter she obtained her LLB degree through the University of the Free State with distinction from 2014-2017. She joined Van Wyk Van Heerden in 2018 as candidate attorney and gained experience in various fields of the law, with a special interest in Property Law and the Administration of Deceased Estates. After qualifying as an Attorney and Conveyancer during March 2020 Aleisha joined the team assisting in the Conveyancing and Estates Departments of the firm.

Gaynor obtained her LLB degree in 2012 from the University of Stellenbosch. She then completed her articles at a law firm in the North West Province where she gained experience in General Litigation, Family Law and Debt Collection. In 2016 she moved back to the Western Cape and finally joined the firm in November 2018 where she currently heads up the Debt Recovery Department.

Mariska obtained her Bachelor of Arts and LLB degree from Stellenbosch University in 2018 and 2020 respectively. She completed her Master of Laws, with a special interest in Children’s Rights, in 2021.

She commenced her articles at Van Wyk Van Heerden in 2022 and was admitted as an Attorney of the High Court at the start of 2024.

She currently practices in the Litigation Department where she assists with, inter alia, Magistrate Court litigation; Divorces; and Evictions.

Leonette completed her studies at the University of Pretoria and obtained her LLB degree in 2009. She practised in Rustenburg for 8 years and specialised in debt Recovery, debt review and related matters.

Leonette joined the firm in 2017 and manages all correspondent work.

Carla grew up in the Free State and decided to relocate to the Cape Winelands to study law at Stellenbosch University. She obtained her LLB degree in 2002 and furthered her studies at the University of Cape Town’s School for Legal Practice where she received the Dean’s award for the best student in Business Management and Administration.

She joined the litigation department at Van der Spuy & Partners as a candidate attorney where-after she decided to pursue a career in property and commercial law, specializing in sectional title schemes, security estates and developments, servitudes, subdivisions and consolidations as well as commercial contracting.

Carla heads up the Conveyancing Department of the firm and mainly assists estate agencies and developers and is actively involved in the marketing of the company.

Charl obtained his law degree at the North West University in 2008. And finalised his articles at Van Velden & Duffey Attorneys where after he practised at the same firm and became a director in 2014.

Charl was recruited by Van Wyk Van Heerden in 2017 to strengthen and assist our growing litigation department. He handles a wide range of litigation matters including company, family, insolvency, banking and delictual law.

"Quick, practical and commercial resolution is first priority"

Willem van Heerden is a Director at Van Wyk Van Heerden in the dispute resolution, litigation and mediation department. He specialises in contractual disputes, company law, shareholder issues, evictions, family law, banking law and insolvency law. He provides sound strategic advice and direction on all commercial and company issues.

He is an accredited commercial mediator as well as a business rescue practitioner.

He has encouraged the appropriate use of mediation in the resolution of all disputes.

He has acted for various international and cross border trade, transport, agricultural and construction companies. Willem has acted for major banks, insurance houses, leading retailers, property groups as well as high network of entrepreneurs and individuals. He serves as a trustee on a number of trusts.

Willem has written various articles and is a co-author of a published legal book on farm evictions.


  • BCom (Northwest University)
  • LLB (Northwest University)
  • Postgraduate Diploma (VRIJE University Amstelveen )
  • Admitted as an Attorney of the High Court of South Africa
  • Accredited Business Rescue Practitioner (University of South Africa)
  • Accredited Commercial Mediator

Nazlee Abrahams grew up in Paarl and obtained the degrees B.Sc. and LLB from the University of Stellenbosch in 1992 and 1997 respectively.

She commenced with her articles at Van Wyk Fouchee in 1998 and was admitted as an Attorney with right of appearance in the High Court in 2000 after which she consequently became a Director at the firm.

In October of 2002 she was admitted as Conveyancer and also Notary Public in 2006. She currently manages Bonds registrations in the Conveyancing Department and further specialises in family & marriage law, drafting of wills, administration of estates and all notarial work.

Nazlee makes a valuable contribution in pro-bono work when the opportunity arises and invests a considerable amount of time in community service. She also serves as the current Chairperson of the governing body of William Lloyd Primary.

Anville specialises in Property Law, General Commercial Law, Estate and Tax Planning, Administration of Deceased Estates and Trust Law. Through the years, he contributed to the community life in Paarl. He was a founding member of the Drakenstein Rotary Club in Paarl, founding member of the Paarl Attorneys Association, served as Captain, President and Chairman of the board of the Paarl Golf Club and has played a major role in establishing the Boschenmeer Golf and Country Estate.

Anville obtained his BA LLB degree at the University of Stellenbosch in 1974. He served his articles with Silberbauers Attorneys in Cape Town and joined Solomon Miller, Hymie Maisel and Willem Gaum in Paarl in May 1977.

He is an experienced and seasoned attorney who commenced his career in litigation and migrated into Commercial, Trust and Tax work. He obtained his post graduate diploma in Tax Law at the University of Cape Town, with distinction, in 1993.

Anville celebrated his 40th year in practice in 2017.