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2016
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[2016] ZAGPJHC 43
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Hlatshwayo v Road Accident Fund (15/01693) [2016] ZAGPJHC 43 (18 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 15/01693
HEARD:
15 MARCH 2016
DELIVERED:
18 MARCH 2016
In
the matter between:-
NTOKOZOYAMASWAZI
HLATSHWAYO
.............................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
HERTENBERGER,
AJ:
[1]
This is an action instituted against the Defendant by the Plaintiff
as a result of a motor vehicle collision which resulted
in the
Plaintiff suffering injuries. The parties have agreed to separate
quantum and merits and accordingly the matter now before
me deals
only with the merits. The parties have agreed that the
Defendant would not pursue the Special Plea of Jurisdiction
and as
such the trial in the matter commenced before me.
[2]
The common cause facts in this matter are briefly as follows: The
Plaintiff was travelling on a rural road, a double carriageway,
from
Dundee to Nqutu at 17:00 on the 30
th
of September 2011.
It was raining. The Plaintiff was driving a Toyota Siyaya
carrying passengers. He was driving
behind a Hyundai truck, in
front of which a Corsa bakkie was travelling. A Mercedes Benz
vehicle overtook all three of the
aforesaid vehicles (thus driving in
the oncoming lane), but due to an oncoming vehicle, the Mercedes Benz
had to re-enter the lane
in which the three vehicles it had
overtaken were travelling, causing the Plaintiff’s vehicle to
collide with the Hyundai.
The Plaintiff was injured as a result
of the collision and taken to hospital. The identity of the
driver of the Mercedes
Benz is unknown.
[3]
I am tasked with determining whether the Plaintiff acted negligently
and either caused the collision, whether he contributed
to the
causing of the collision or not.
[4]
The Plaintiff was the only witness who testified in this matter.
He was a reliable witness and described the incident
with sufficient
detail to the court. He told the court that it was raining, but
that he was still able to see clearly.
The speed limit on that
road was 100 km/h yet he was travelling at 60 km/h. He was
wearing a seatbelt. A Mercedes Benz
motor vehicle came from
behind him at high speed, overtaking him and both the Hyundai and the
Corsa that were driving in front
of the Plaintiff. The Mercedes
Benz was in the process of overtaking the Corsa, when an oncoming
vehicle caused the Mercedes
Benz to swerve in front of the Corsa.
Seeing the Corsa brake suddenly, the Plaintiff attempted to apply his
brakes, but the
Hyundai was too close and the three vehicles
collided. The Plaintiff also testified that there was a donga
on the side of
the road and that he thus had to take evasive action
to not swerve off the road as this would have caused his vehicle to
roll,
injuring the passengers that he was transporting. He
further confirmed that there was an estimated two car lengths
travelling
distance between his vehicle and the Hyundai. The
road was wet, not allowing him to travel at a high speed. He
estimates
the speed of the vehicles in front of him to be 60 to 65
km/h. In his view the sole cause of the collision is the driver
of the Mercedes Benz.
[5]
Under cross examination the Defendant’s counsel attempted to
get the Plaintiff to admit that he did not keep a proper
lookout and
in summary that he should have anticipated the collision which
resulted. There is much made of the photographs
contained in
the bundle handed up to me, which do not depict the road from both
directions of travel. It is clear that the
perspective of the
photographs caused some confusion to the legal representatives, as
well as the witness. Once it had been
clarified that the
photographs were taken from the front of the road such that the
Plaintiff was travelling from the top to the
bottom of the
photograph, the Plaintiff could point out the scene of the accident.
What was not borne out by the photographs
is the existence or lack
thereof of the incline, which the Plaintiff testified obscured the
view and thus also led to the fact
that he noticed the oncoming
vehicle at a very late stage.
[6]
In evaluating the Plaintiff’s evidence as a whole, the
Defendant did not in my view succeed in getting the Plaintiff to
concede that he did not do everything in his power to avoid a
collision.
[7]
The test for negligence is summarized by the court in the matter of
JONES NO v SANTAM BPK
1965 (2) SA 542
(A) as follows:
“
A
person is guilty of
culpa
if his conduct falls short of that
of the standard of the
diligens paterfamilias
– a
standard that is always objective and which varies only in regard to
the exigencies arising in any particular circumstances.”
It
is trite that the criterion of the reasonable person is central to
the determination of negligence.
[1]
The question then arises whether the reasonable person would have
foreseen the harm and secondly whether the harm could have
been
prevented by taking reasonable steps.
[2]
[8]
I cannot find any evidence that supports a view that the Plaintiff
ought to have anticipated the actions of all the other vehicles
involved in the collision as well as the Mercedes Benz and the
vehicles travelling behind him. In my view the fact that the
Plaintiff cannot remember the exact sequence in which the Corsa, the
Hyundai and his own vehicle collided with each other, is not
surprising as the collision occurred very quickly. The
Plaintiff was mindful of the safety of the passengers seated in his
vehicle and took evasive action to prevent a more serious situation –
in other words prevented the vehicle from rolling into
the donga.
It is evident that the negligent driving of the Mercedes Benz driver
is the sole cause of the collision that resulted
in the injury of the
Plaintiff. The Mercedes Benz driver was driving at a high speed
in the oncoming lane. It was raining
and he or she was
negligent in attempting to overtake three vehicles, and possibly more
than three, under such conditions.
The aforesaid conduct
cannot be considered reasonable.
[9]
Accordingly, I find that the Plaintiff’s claim on the merits
must succeed.
[10]
In the result the following order is made:
(1)
The Plaintiff’s claim in respect of the merits succeeds;
(2)
Costs of suit, including the cost of the interpreter.
R
HERTENBERGER
ACTING
JUDGE OF THE
HIGH COURT OF
SOUTH AFRICA –JOHANNESBURG
APPEARANCES
COUNSEL
FOR PLAINTIFF: ADV. LATIB
PLAINTIFF’S
ATTORNEYS: MATODZI NELUHENI ATTORNEYS
COUNSEL FOR
DEFENDANT: ADV. ADAM
DEFENDANT’S
ATTORNEYS: SARAS SAGATHEVAN ATTORNEYS
[1]
Neethling, Potgieter and Visser
Law
of Delict
7
th
Edition p 141
[2]
Neethling, Potgieter and Visser
Law
of Delict
7
th
Edition p 150 to 151