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[2020] ZAWCHC 94
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Maseko v Road Accident Fund (7086/2018) [2020] ZAWCHC 94 (19 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE PROVINCIAL DIVISION, CAPE TOWN)
CASE
NO
: 7086/2018
DATE
:
2020.08.19
In
the matter between
MPUMELELO BLESSING
MASEKO
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
EX
TEMPORE
JUDGMENT
ROGERS
J
:
This is an action against
the Road Accident Fund (‘RAF’) for damages arising out of
an accident which occurred on 2
September 2016. The plaintiff was a
pedestrian who was struck by a minibus taxi and injured.
The plaintiff appeared
today through counsel. The RAF was for some time represented by
a firm of attorneys, but in accordance
with a blanket instruction
given by the RAF to attorneys on its so-called ‘panel’,
those attorneys filed a notice of
withdrawal on 17 March 2020. The
date of today’s trial – 19 August 2020 – was set by
way of a notice of set down
issued in December last year, the matter
having been certified trial-ready in November last year.
I must at the outset say
something about the unfortunate state of affairs which prevails in
the legal administration of cases against
the RAF. Present this
morning for the RAF as an observer was Mr Swart, a senior claims
handler at the RAF’s Cape Town office.
He did not claim a right
to represent the defendant in the litigation. He did not ask me to
grant a postponement. He was, as I
have said, here as an observer. If
the RAF had sought a postponement, the circumstances are such that it
is very unlikely to have
been granted.
During the course of the
evidence, I invited Mr Swart to raise with me any aspects he wished
me to canvass with the plaintiff’s
witnesses; and upon the
conclusion of the evidence I allowed him to make brief observations
on the merits of the case. However,
if the RAF is prejudiced in the
present case by the absence of legal representation, it is prejudice
flowing from the fact that
I have not heard evidence from the driver
of the minibus taxi, who would have been a natural witness for the
RAF to have called
had it been legally represented. While I cannot
say that the evidence of the taxi driver would have led to a
different result,
that is at least a reasonable possibility, since
the evidence of the plaintiff and his eye-witness was not so plainly
unimpeachable
that it might not have been called into question by
countervailing evidence.
It seems to me that the
conduct of the management of the RAF, in terminating the mandates of
all its panel attorneys and then failing
in appropriate circumstances
to engage other attorneys to represent it in proceedings, is
prejudicial to the public interest.
The RAF is, in terms of
s 2(1)
of the
Road Accident Fund Act 56 of 1996
, a juristic
person. A juristic person, unlike a natural person, cannot appear in
person in litigation; it has to be represented.
And authority
establishes that save in exceptional circumstances, only duly
qualified legal representatives may act as representatives
of a
corporate entity. The general restriction in this regard probably
flows as a necessary implication from the fact that a number
of
statutory requirements are set in order for a person to be able to
represent another in litigation, such requirements being
those
satisfied by advocates and attorneys with the right of audience in
the High Court.
But whatever the source
of the rule, it is as I have said well established. The most recent
high authority on this question is the
judgment of the Supreme Court
of Appeal in
Manong & Associates (Pty) Ltd v Minister of
Public Works & another
2010(2) SA 167 (SCA), where the whole
question is discussed by Ponnan JA in paragraphs 3 to 16. The learned
Judge of Appeal confirmed
the ordinary rule but added that in the
exercise of its inherent jurisdiction the High Court may permit a
corporate entity to be
represented by a person who is not a lawyer
with a right of appearance in the High Court. In paragraph 10 he
said:
‘
The
circumstances in which the court would depart from the general rule
and allow such representation were likely to be rare and
their
circumstances exceptional or at least unusual.’
From the discussion in
that case, it appears that the most likely circumstances in which the
court would permit a corporate entity
to act through one of its
officers are where the company is a small entity, either a one-person
company or a small entity where
a particular director may be supposed
to have as much knowledge about the circumstances of the case as
would a similarly placed
private individual. The larger and more
complex a corporate entity, the less likely it is that a court will
permit it to appear
through an official.
This is particularly so,
it seems to me, in the case of the RAF, which is a large organisation
with a complex hierarchy of officialdom.
It has a budget for legal
expenses. Indeed I understand from the judgments delivered in recent
Gauteng litigation between panel
attorneys and the RAF that the RAF’s
own position is that although it has dispensed with the services of
its panel attorneys,
it will nevertheless appoint attorneys
ad hoc
when this is needed. It does not appear to be the RAF’s
position that it should be entitled to be represented through its
officials in court.
Whatever the RAF’s
intentions may be, the practical reality is that in many cases it is
simply not being legally represented.
The present is just one
example. If the defendant had been legally represented, if it had
called the evidence of the taxi driver,
and if that evidence had
ultimately been accepted or was sufficient to cause the plaintiff to
fail in discharging the burden of
proof resting on him, the RAF would
have been spared the cost of meeting the plaintiff’s claim for
damages. The current circumstances
simply do not seem to me to be in
the best interests of the public of whose funds and affairs the RAF
is custodian.
I turn now to the facts
of the present case. At the commencement of proceedings I made an
order in terms of
rule 33(4)
that the issues arising from paragraphs
1 to 4 of the particulars of claim as read with the plea thereto
would be decided first,
other issues to stand over for later
determination. Essentially that means I must decide, first, whether
the accident was caused
by the taxi driver’s negligence; and,
second, if so whether the plaintiff himself was contributorily
negligent.
The witnesses called by
the plaintiff were himself and his friend Prize Mathebula. The
prelude to the accident, which was at an
intersection, is clear
enough. The road running from west to east is Voortrekker Road, which
before the relevant intersection is
called Voortrekker Road but on
the east side of the intersection becomes Strand Road. The road which
intersects it at the relevant
intersection is called Oos Road to the
south of the intersection and Quarry Road to the north of the
intersection. To avoid confusion
I shall refer to these two roads
simply as Voortrekker Road and Quarry Road, regardless of which side
of the intersection they
are on. The intersection is controlled
by traffic lights which include traffic lights for vehicular traffic
and traffic lights
for pedestrians. Both roads carry two lanes of
traffic in each direction, though Quarry Road south of the
intersection has a third
lane of traffic for vehicles turning right
(eastwards) into Voortrekker Road.
The plaintiff and Mr
Mathebula were both employed at the relevant time in Maitland. They
met up after work in order to take a taxi
home together because they
both lived in the same residence in Parksig Villas in Bellville. They
took the taxi to the Bellville
taxi rank (near the station) and
walked along the upper (north) side of Voortrekker Road in the
direction of their residence. This
route took them to the
intersection that I have described.
When they got there, the
pedestrian light was red, meaning that they could not cross Quarry
Road to get to the other side of Voortrekker
Road in order to walk
further east along Voortrekker Road, and so they stopped. Mr
Mathebula needed to relieve himself and chose
to do so against the
wall of the FNB building close by.
The plaintiff testified
that when the pedestrian light turned green, he checked to his right
and to his left, concluded that it
was safe to walk across the
intersection in accordance with the green pedestrian light, and
entered the intersection. He was just
past the first lane when a
hooter from his right attracted his attention. He looked to his right
and there was a taxi approaching
him at some speed in the fast lane
in a south to north direction. His instinctive reaction was to jump
backwards, ie from the fast
lane back to the slow lane across which
he had just walked, but it seems he could have made little progress
in this direction when
he was struck by the taxi, which had also
chosen to swerve left in an attempt to avoid him.
He was flung some metres
further north into Quarry Road where he lay in the fast lane of that
road. His injuries, particularly to
his right shoulder and arm, made
it impossible for him to lift himself off the ground.
The
evidence of Mr Mathebula was that after he had relieved himself, he
turned around and was just at the curb of the intersection,
about to
step into the intersection, when he saw the plaintiff being struck by
the taxi. He confirmed that the pedestrian light
at this stage was
green in favour of pedestrians crossing from west to east.
He also testified that
the traffic light for vehicular traffic in Voortrekker Road was
green, in other words that traffic was flowing
from west to east (and
presumably also from east to west). If Mr Mathebula’s evidence
is correct, it must follow that the
traffic light for traffic wanting
to cross the Quarry Road intersection in a northerly direction was
red.
The plaintiff’s
evidence on this point is less clear. Initially he testified that
when he entered the intersection not only
the pedestrian light but
also the light for vehicular traffic in Voortrekker Road was green,
and that the traffic lights for vehicular
traffic in Quarry Road were
red. He said that this was definitely the case. A little later,
however, he said that he could not
recall the colour of the lights
for traffic in Quarry Road but that when he had looked to his right
and left he had not observed
any traffic flowing in a direction from
south to north.
Other evidence from the
plaintiff suggests that when he arrived at the intersection the
pedestrian light was, as I have said, red
for him but that the lights
for traffic in Voortrekker Road were green. He said, when shown
photograph 30 in Exhibit A, that this
was how the traffic lights were
when he arrived at the intersection – red for him but green for
traffic in Voortrekker Road.
This would also be consistent with the
fact that later in his evidence, in response to my questions, he said
that although on some
occasions he would walk across a road when the
pedestrian light showed red if it was safe to do so, on this occasion
he had stopped
because there was traffic from Voortrekker Road
turning north (left) into Quarry Road.
I think I may infer (or
take judicial notice of the fact) that a green pedestrian light would
either be displayed before or, at
the latest, at the same time, as
traffic lights turn green for any vehicles travelling in the same
direction as, or turning left
ro right across the path of,
pedestrians. A green pedestrian light would not be displayed
simultaneously with a green light for
traffic travelling through an
intersection at 90° to the pedestrian path.
So if, as the plaintiff
said, the pedestrian light for him was red but the light for
Voortrekker vehicular traffic was green, the
next change in the
traffic lights would have been that the Voortrekker Road traffic
lights for vehicular traffic would also have
turned red; that there
would have then been a green light for traffic in Quarry Road; and
that thereafter the pedestrian light
for the plaintiff would have
turned green, either at the same time as, or shortly before, the
lights for vehicular light in Voortrekker
Road turned green. This
would imply that when the plaintiff arrived at the pedestrian he
first waited for the lights to turn green
in Quarry Road and then,
when they turned red, he entered the intersection and that the taxi
jumped the red light, hence the collision.
In the absence of
contradicting evidence from the taxi driver or any other eye witness,
I cannot reject the evidence adduced on
behalf of the plaintiff that
the pedestrian light was green for him, from which I think one must
infer that at that stage the vehicular
traffic in Voortrekker Road
also had a green light. There would never be a green light for
a pedestrian in the position and
direction that the plaintiff was
facing and walking if there was also a green light for traffic in
Quarry Road. It follows
that the driver of the taxi entered the
intersection at a time when the lights were red against him. It also
appears from the photographs
that the driver of the taxi would have
had a fair view of the intersection. If he only saw the plaintiff and
hooted at the point
that the plaintiff marked on the exhibits, the
driver of the taxi could not have been keeping a proper lookout.
The question then arises
as to whether the plaintiff himself was negligent. We do not know at
exactly what speed the taxi was travelling.
The plaintiff estimated,
though I would not attach too much significance to this, that it was
more than 60 k/h and he mentioned
a figure of 80 k/h. I would
observe that at a speed of 60 to 80 k/h, a vehicle would cover
between 17 and 22 metres per second.
When the plaintiff looked right
and left before entering the intersection, it would then have taken
him perhaps four or five seconds
to get to the point where he was
eventually struck. So at the point that he looked right the taxi
would have been perhaps 100 or
so metres away from him.
The plaintiff testified
that he did not see a taxi when he looked right. The configuration of
the roads suggests that he could probably
have seen a taxi if it was
about 100 metres away, but perhaps he did not remember it because his
natural assumption, given the
phase of the traffic lights, was that
any vehicles at that distance from the Quarry Road intersection would
stop at the red light.
I thus conclude that it was safe for the
plaintiff to enter the intersection at the moment he did.
I do not think it is
expected of a pedestrian that he should keep on looking all around
him as he continues his walk across an intersection.
It may have been
prudent for him to have done so, but I do not think he was negligent
not to have done that.
It was suggested by Mr
Swart that when the plaintiff did become aware of the taxi, the
evasive action which he took was unreasonable,
and that he should
have lunged forward rather than backwards in the direction the taxi
itself swerved. However, given the
speed at which the taxi was
travelling (and I assume here that it might have been travelling as
slow as 60 k/h), there would
have been virtually no time for the
plaintiff to move either forward or backwards. As I have said, at a
speed of 60 k/h the taxi
would have been covering 17 metres p/s, and
my rough estimate from the markings made by the plaintiff on the
exhibits is that the
taxi was probably no more than four or five
metres from him when he looked to his right upon hearing the hooter.
Since he could
not have mcovered any significant distance forwards or
backwards, it has not been shown that had the plaintiff’s
instinct
been to take evasive action by darting forward rather than
jumping backwards it would have made any difference.
Mr Mathebula’s
description of the accident seems to be correct, which is that the
plaintiff was, practically speaking, struck
at precisely the same
position he was when he saw the taxi and was picked up by the front
of the taxi and flung forward. It is
noteworthy that both the
plaintiff and Mr Mathebula marked the same spot as to where the
plaintiff landed up afterwards. This spot
was further up in the fast
lane of Quarry Road to the north. If the plaintiff had made any
significant movement back to the slow
lane, he would have been flung
in that direction or to the left instead of forward.
However, even if,
causally, there might have been a different outcome if the plaintiff
had lunged forwards rather than making some
movement backwards, I do
not think in the split second that the plaintiff’s instinct can
be regarded as negligent or even
wrong. He was faced with a vehicle
coming in the same lane in which he was. He seems to have been
closer, at that moment, to the
lane-divider than to the central
traffic island, and it was natural that he should try to get out of
that lane by taking the shortest
route which would get him out of
that lane. Although the taxi veered to his left to avoid the
collision, I do not think,
in the split second in which all of this
must have happened, that the plaintiff would have observed the
swerving and had any time
to judge what to do thereafter. This was
not a case where the plaintiff can be said to have knowingly and
negligently gone into
the path of the swerving taxi.
I thus conclude that the
defendant has not discharged the burden of showing that the plaintiff
was contributorily negligent.
I thus make the following
order.
(a) The defendant is
liable in full for all such damages as the plaintiff may prove to
have suffered in consequence of the collision
alleged in the
particulars of claim.
(b) The defendant is to
pay the costs associated with the determination of liability,
including the costs of today’s appearance,
subject to the
proviso that if in due course the amount of damages, as proved or as
agreed in a settlement, is within the jurisdiction
of the Regional
Court, such costs shall be taxed on the scale that would have been
applicable in the Regional Court.
…………………………
..
ROGERS, J
JUDGE OF THE HIGH COURT
DATE
:
………………………….