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[2014] ZAGPJHC 385
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Fuzeka v Road Accident Fund (29745/08) [2014] ZAGPJHC 385 (21 October 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 29745/08
DATE:
21 OCTOBER 2014
In
the matter between:
BAM
FUZEKA
........................................................
Plaintiff
And
ROAD
ACCIDENT FUND
..................................
Defendant
JUDGEMENT
FRANCIS
J
1.
The plaintiff instituted an action for damages in her personal
capacity and in her representative capacity as the natural guardian
on behalf of her two minor children against the defendant – the
Road Accident Fund, after her husband, Hulana Abednego Babibi
(the
deceased) died in a motor collision on 8 March 2007 between the
vehicle that he was driving namely a Bantam bakkie with registration
numbers and letters NCW 4200 and an unknown truck that fled the scene
of the collision.
2.
The action was defended by the defendant.
3.
At the commencement of the trial, the parties agreed that the sole
issue for determination in this action was the issue of liability.
Quantum was agreed in the sum of R2 079 251.00 for loss of support.
This court was informed that the two witnesses to the accident
were
deceased but that they had given the police affidavits about how
the
accident occurred. Further that it was agreed at a pre-trial
conference that the witnesses’ statements would be accepted
as
evidence at the trial.
4.
This matter proceeded before me by way of a stated case in terms of
Rule 33(1) of the Rules of this Court. Attached to the stated
case
were four annexures namely annexure A which is an affidavit by
Mzwandile Nzabe; annexure B which is an affidavit by Mbulelo
Loqo;
annexure C which is a report by Gerald Lemmer an accident and
reconstruction expert employed by the defendant to investigate
the
accident; annexure D is an affidavit by sergeant Mzuvukile Jackson
Mnyamana about his observations when he arrived at the scene
of the
collision and annexure E which is an Accident Report Form.
5.It
is clear from the stated facts and from the affidavit of Mzwandile
Nzabe who was employed as a security guard that on 8 March
2007 at
about 4h00 he saw a truck
moving
in the direction of Mount Zion from the direction of Nomlacu and saw
another vehicle which was moving in the opposite direction
of the
truck. After the vehicles had passed each other and one minute later
he heard three banging sounds. When he later knocked
off from work,
he went past the area from where the sounds had come from and saw a
motor vehicle that was on the side of the road
and was damaged. He
then realised that the sound that he had heard earlier was the sound
of the accident. He immediately made
a statement to the police.
6.Mbulelo
Loqo stated in his affidavit that he was driving his City Golf
vehicle behind a white truck which was travelling at a
high speed.
He observed the truck trying to
avoid
a pothole and in the process collided with a white motor vehicle that
was coming from the opposite direction. He was in a
hurry and did
not stop to make further observations and instead called the police.
On his way back, he found the police at the
scene of the accident and
the motor vehicle was still at the scene. He gave his statement to
the police about what he had witnessed
earlier.
7.Gerald
Lemmer an accident and reconstruction expert who was employed by the
defendant to investigate the accident compiled a report
after he had
considered the statements of the two witness as well as the accident
report. He concluded that it was clear that
the Bantam bakkie was
out of control and it had zig-zagged across the road and overturned
off the road on its correct side. He
said that there is nothing in
the observations of the eye-witnesses which are at variance with the
laws of physics. The zig-zag
motion of the Bantam bakkie was typical
of a driver trying to regain control of his vehicle after a
collision.
8.It
is clear from the affidavits attached to the stated case that the
driver of the unknown truck was travelling at a high speed.
He then
swerved to avoid a pothole and in the process collided with the
Bantam bakkie that was travelling in the opposite direction.
The
collision caused the deceased to lose control of his vehicle which
caused it to overturn.
9.The
driver of the unknown truck was clearly negligent in that he was
travelling at a high speed and had swerved into the direction
of the
oncoming vehicle, collided with it which caused the said vehicle to
overturn.
10.It
is trite that since this is a claim for loss of support, the
plaintiff must prove that the defendant’s insured driver
was 1%
negligent. I am satisfied that the plaintiff has discharged that
onus.
11.I
find it odd that despite the overwhelming evidence that was presented
to the defendant including that of the defendant’s
own expert
witness, it had to put the plaintiff at the expenses of such a trial.
I would have thought that one of the purposes
of requiring
claimants to give notice to the defendant is to investigate claims
and where it is clear that the defendant has no
defence is to settle
such claims. This clearly did not happen in this case. The
officials of the defendant should be reminded
of their statutory
duties and obligations. A time will come when costs orders should be
made against such officials in their personal
capacity when they do
not carry out their duties and defend claims where there is no real
defence to such claims.
13.There
is no reason why costs should not follow the result.
14.In
the circumstances I make the following order:
14.1The
defendant is to pay the plaintiff the sum of R2 079 251.00 within
twenty eight days of date of this order.
14.2
The aforesaid sum is to be paid into the following bank account:
Account
name : Ndlebe Msuthu Incorporated Attorneys
Bank
name : First National Bank
Branch
name : Carlton Centre
Account
number : 6……………….
Branch Code :
2………………
14.3
Interest a temporae morae on the above sum at the prescribed rate per
annum.
14.4
The defendant is to pay the plaintiff’s costs including
counsel’s costs and that of the plaintiff’s experts.
FRANCIS
J
HIGH
COURT JUDGE
FOR
PLAINTIFF :N YINA INSTRUCTED BY NDLEBE MSUTHU INC
FOR
DEFENDANT :X BUTHELEZI INSTRUCTED BY MOLEFE -
DLEPU
ATTORNEYS
DATE
OF HEARING :20 OCTOBER 2014
DATE
OF JUDGMENT:21 OCTOBER 2014